Oh or Oi? An observation in male and female differences

Hi, this is Shifra, just thought I'd blog a little, seeing as Nephtuli placed me on the list of contributors a while ago (appears sheepish).

I was wondering if anyone had any ideas about the following observation: girls in the yeshiva world (Bais Yaakov system) are taught to pronounce their "cholem" sounds, such as in the word "yom," as "yom," whereas the boys are taught to pronounce the sound as "oi," causing the word to sound like "yoim." In the same family, and same philosophically-minded schools, the same words are pronounced quite differently. Does anyone have a reason as to why this occurs?

Maybe Trading Randy Isn't Such a Good Idea After all?

As you probably heard the Yankees are looking to trade Randy Johnson to the Diamondbacks. Since Johnson ERA last year was over 5, it would seem like a good idea especially if we can get something decent back for him.

However after reading this article, I'm not so sure. Basically the author uses statistics that measure the extent which a pitcher's defense and luck affected his numbers. DIPS, or defense independent pitching statistics, takes into account the statistics that the pitcher has complete control over (strikeouts, walks, HBP and home runs) and filters out everything else. The basic idea assumes that pitchers really have no ability to control balls that are hit into play so sometimes they get lucky or unlucky.

Last year, according to DIPS and LIPS (luck independent pitching statistics) Randy Johnson was one of the most unlucky pitchers in the majors (interestingly Wang was the most lucky, which makes sense considering he rarely strikes anyone out and everything is put into play). If the statistics are accurate, we should expect him to have a much better year in 2007.

I need to study these stats more closely before I can have a strong opinion either way. I've become more enamored with sabermetrics over the past year, so I can see how DIPS could be relatively accurate. Nevertheless, trading Randy as a salary dump is probably not a good idea unless Roger Clemens is in the bag.

Did I Miss Something?

I intend to write a long post on Israel soon, but until then this one will have to suffice. So apparently there's a ceasefire in the Gaza Strip, which Palestinian groups routinely violate by firing rockets into Sderot. So it makes sense that the Palestinians are responsible for violating the ceasefire, right?

"PLO executive committee member Yasser Abed Rabbo, who also serves as an advisor to Abbas, warned that the Israeli decision would lead to the breakdown of the cease-fire. He described the decision to target Kassam launchers as a "breach" of the cease-fire agreement."

Huh?

Basically they can shoot at Israel but if Israel retaliates, the Israelis are breaking the ceasefire?!

On Word Limits On Law School Exams

There is a big debate going on about enforcing word limits on law school exams on PrawfsBlawg. A professor's take-home exam clearly stated that the word limit will be strictly enforced and that exceeding the limit is not allowed. A student went a few words over; what should he do?

I only skimmed the long thread, so maybe I missed some important comments, but I think the important question is why word limits are necessary at all? Are they in place to guide students or to make grading easier for the professor? Both objectives are valuable in my opinion, but the former is more important because grading is part of a professor's job. The guidance that a word limit offers is tangible because most questions or fact patterns are vague and students need to know whether to write a whole treatise on property law or whether to just focus on one narrow issue. And that's especially true where the exam is timed.

So how should the offender be penalized? I think the best answer is to stop reading at the word limit or at the end of the sentence thereafter. I don't see any point in actually punishing the offender; if he spent his time thinking of issues, analyzing them, and making arguments both ways in excess of the word limit, he's punishing himself when the professor ignores that work. What purpose does extra punishment serve?

One professor, Mike Dimino (who I've mentioned before), argued that the student should get a F (!) because he broke the rule. Recognizing that failing a student could be more of a problem for a professor than it is worth, he advised a two-pronged penalty: stop reading and deduct points. I don't understand the point of the latter. Dimino claims that a professor who stops reading at the word limit is not penalizing the student, because the student could take a chance and exceed the limit, and if the professor abides by his rules, the student is worse off. But that isn't true. The student who wastes his time writing extra is being punished. But more to the point, why must students be punished anyway? As long as he doesn't benefit from the extra words, who cares? Is it the law school's job to punish people who exceed word limits? These people take themselves way too seriously.

Odd Imbalance in Sports

It seems strange, but right now in the three major sports (baseball, basketball, and football) there is a major gap between the two conferences or leagues. Which sport offers the greatest gap?

Baseball

Here are the baseball standings for 2006. While the American League boasted 5 teams with 90 wins or better, the National League only had one. The AL had 8 teams with 85 wins or more and the NL only had 4. If we move the bar down a little, the gap narrows a bit: the NL had 6 teams over .500 while the AL had 8. But putting that into perspective, every one of the AL's over .500 teams were at least 10 games over, while the NL had two teams that were 5 games over or less.

Even more to the point, the AL dominated in interleague play 154-98, a .611 winning percentage that would have won every division in baseball. And while the Cards won the World Series, I don't put too much stock into a short 7 game series. The Cards went 5-10 in interleague play. If they switched place with their Missouri neighbors, they would have ended up in the exact same place in the AL Central: last.

Football

The season isn't over but it's clear which conference is better at this point. The AFC has 4 teams with double digit wins; the NFC has one. Put another way, no division leading team in the AFC has more than 4 loses. The NFC has three such teams.

And it gets worse. The AFC has 8 teams that are 8-6 or better; the NFC has 5. The AFC has 12 (out of 16, which is 66%) teams that are .500 or better. The NFC has 7. There is serious talk of a 8-8 team making the playoffs in the NFC. 10-6 should be enough to do it in the AFC.

Interconference games are the reason for the disparity. The AFC's record against the NFC is 38-22, which is about a .633 winning percentage. Put into perspective, that percentage would win the NFC West, and would be a tad behind the Saints and Cowboys for bye weeks.

Basketball

Let's take a look at the NBA. The East has only 4 teams that are over .500. The West has 7. If we make the rules more strict, the West has 7 teams with a better than .600 winning percentage, while the East only has 3. The West also has 4 teams with a better than .700 percentage, while the East has none. Oh did I fail to mention that the Atlantic division leading Celtics are 3 games under .500?

The interconference rate in pretty high as well. I might be off by a number of two, but the West is beating the East 84-52, which comes out to about a .608 clip. A team with that percentage would be tied with Cleveland and a tad behind Orlando for the second spot in the East. They would also be tied for 7th in the West.

So based purely on interleague and interconference percentage, it would seem the NFL has the greatest gap between its two conferences. We'll have to see where everything ends up in the NBA, because the season is barely 25 games old. The NFL is pretty set, since most teams of the interconference games are finished.

Of course this analysis isn't completely acurate since we need to take schedule into consideration. We also have to look at home/away records. But as it stands right now, the winner of any of the better leagues or conferences is clearly the best team in its sport.

What I Learned From Finals

Ok, it's been a while but I've been putting off blogging for more important things, like finals. Finals aren't over yet, but the worst is past and so I'll start blogging at a decent pace in the future. But here's one thing I learned during my Federal Income Tax final:

I've always been bothered by how people in Yeshiva never say Gezuntheit after someone sneezes. We've been taught that learning is very important that one shouldn't even waste time on saying Gezuntheit. I've never bought that argument because it's common courtesy to say Gezuntheit and it almost seems rude not to do so. Sure we'd be wasting a split second, but who doesn't do that anyway?

The issue became more pronounced when I got to law school and noticed that people say Gezuntheit during class. Basically it's acceptable for the class to be interrupted because of common courtesy. If people are willing to stop a whole class, is it really that bad to stop learning for a second?

Last week I was taking a 4 hour final, which like pretty much every other law school final, was time pressured. While during class people spend their time playing Solitaire or going on-line, I assure you no one wastes time on a law school final.

So I was taking the test and heard someone sneeze. There was no Gezuntheit. It happened again. And again there was silence. I listened to a few sneezes and heard nothing. Hmmmm, why did no one respond?

The obvious answer is that every second counted. Everyone is locked in (except me I guess) and even if they do notice a sneeze, they aren't going to waste valuable time saying Gezuntheit.

I guess the same idea applies to learning Torah. We should consider the time we spend learning as valuable as the time we spend taking our law school finals. We should be completely focused and every second should count, even more than the courtesy of saying Gezuntheit.

Who's Voting For the MVPs?

OK, despite my DSL failing I'm going to post using dialup. The MVP voters are clearly not watching the same sport I do.

My picks for MVP were Albert Pujols and Derek Jeter.

First the NL MVP award went to Ryan Howard. Howard is not a bad pick, but it's hard to see the award not going to Albert Pujols, who pretty much beat Howard at every statistic that mattered.

Now onto the real travesty, which was Justin Morneau beating out Derek Jeter and Joe Mauer for the AL MVP. I could understand Mauer winning the award, and practically he might really have been the most valuable player in the majors this year. But Morneau? How is he more valuable than Jermaine Dye or Jim Thome?

The voters seem to be stuck using "traditional" stats such as home runs and runs batted in to make these decisions. Howard edged Pujols in both those categories. And Morneau easily topped both Jeter and Mauer in both stats.

It's as if the voters felt they couldn't give the award to Jeter or Mauer when they had a player who batted .320 and had over 30 hrs and 130 rbi. But that's plain stupid. First Jeter and Mauer both batted higher with runners in scoring position, so Morneau's rbi total is basically irrelevant. And while Morneau did have more power, both Jeter and Mauer had substantially higher OBPs. Why choose power over the ability to get on?

And here's the main point: Both Jeter and Mauer put up their numbers from middle of the infield positions where good hitters are at a premium. A shortstop with an OPS of .900 is much more valuable than a first baseman with an .934 OPS. It's why Jeter had a substantially higher VORP (the best in the league). It's also why Jeter led the league in win shares and had the second highest WARP3 (which measures wins over replacement player) in baseball (behind Pujols).

Here's what makes this even more ridiculous: Jeter won the Henry Aaron award for best hitter in the AL (an award he did not deserve) and won the gold glove at SS (which he also did not deserve). Morneau won neither. How is he more valuable again?

Update: Noyam makes the same point, but better than I did.

Frumteens Responds To Flying Spaghetti Monster (FSM) Theory!

Who would think that Frumteens would have even heard of it? Maybe he's responding to me?

Here's his argument:

"There are APikorsim who ask, how do you knwo that G-d created the world? Maybe it was the SPaghetti Monster?

The answer is, it is possible that the spaghetti monster created the planet earth, or people, but since the spaghetti monster is, presumably, a physical entity, or at the very least, an entity with certian attributes which makes him the spaghetti monster, then it cannot be he First Cause, who created all reality. In other words - the spaghetti monstrer could not have created the world since he is part of the world. Simply put: If the spaghetti monster created the world, who created the spaghetti monster? There has ot be a First Cause at the end of the chain, with no attributes or limitaitons at all.

Call that First Cause whatever you want --- Jews refer to it as Hashem."

Let's leave aside the flaws in First Cause theory for a moment. If there's a first cause, why can't it be the FSM? Frumteens claims because the FSM has to be part of the world (because he has to have specific attributes to be a flying spaghetti monster) and therefore can't be the first cause.

But why must the first cause have no recognizable attributes? G-d clearly has some attributes because something with no attributes is nothing. For G-d to be the first cause whatever attributes he has must have existed prior to creation. So why is it impossible for spaghetti to exist before creation?

Why is the FSM anymore part of the world (or reality) than G-d?

The Death Of A Great

Milton Friedman died today. For a good bio on his life see his Wiki entry. His economic work led to a revival of free market theory and a resurance of libertarian thought.

(Hat Tip: Volokh)

Wow Steroids Really Do Work!

To get a sense how much better Barry Bonds was than everyone else in 04, look at this chart. You don't even have to know what it means. Just look at how much higher his numbers were.

Did He Just Say That?!!!

"This is gut-check time for James Dolan, who if he doesn't have Kiki Vandeweghe's phone number memorized by now he should have it tattooed to his forearm."

He's right about Isaiah Thomas, but should stay away from Holocaust imagery.

Nah, He's No MVP

Check out Phil Taylor's article on Si.com today. His basic theory? That Derek Jeter doesn't deserve the MVP because he never "accepted" ARod. Seriously.

A shortstop with the second best VORP in the AL and one of the best batting averages with runners in scoring position shouldn't win the MVP because he never sat down with ARod and told him he was his friend. Mindboggling.

What Good Is Objective Morality?

Rabbi Avi Shafran, in a Cross-Currents post that is being discussed all over the J-blogosphere (see here particularly), alleges that atheists are unable to provide a legitimate reason why people should behave ethically (that is engage in actions that are "good" as opposed to the ones which are "bad"). He argues that,

If our perception that some deeds are good and others are not is but a quirk of natural selection, none of us need feel any commitment to morality or thics.

Believers, on the other hand, accept a divine morality that is objective, in that we know the essence of what is right or wrong without appealing to our own subjective intuitions. An atheist might feel that murder is wrong, but what makes his opinion anymore valid than the serial killer on death row?

I believe this argument is flawed for a number of reasons. In theory I could see a value to objective morality, but reality negates that possibility.

But I want to focus on one specific point, which I think mitigates the whole argument for objective morality. While I accept that G-d gave us ethical guidelines that we must obey (and am willing to agree that those guidelines prescribe "good" conduct), those same guidelines are subject to human wants and desires.

Let me us an analogy. Very few serious legal scholars believe that all legal questions have correct answers. The easy questions certainly do. A person who drives through a red light is certainly subject to a fine. The difficult questions, however, usually have large grey areas and are subject to intuition and moral judgment.

The same applies to ethical guidelines. Let's assume that murder is the unnecessary killing of innocents. I think most people would agree that killing a random schoolchild for the fun of it is immoral. However, what about killing a bus full of Israeli civilians in retaliation for the IDF's targeted killing of a big Hamas leader? The suicide bomber might reason that the killing is necessary in order to prevent further attacks on Hamas. Moreover, he might argue that most Israeli civilians are soldiers or that they support the immoral regime politically, economically, and psychologically and are not innocents.

Now I'd assume most of us reading this post would disagree. But even if we agreed with the terrorists definition, we'd still disagree with his application of the principle to material facts.

I'm not even making the obvious point that if there is an objective morality, we still have no way of being sure what it is. Even if the whole world would agree about certain principles and their definitions, we'd still disagree about how to apply them. In what way are those ethical beliefs more objective than the atheists who disagree on the principles and the application? Sure, we're one step ahead because we believe we have the principles down pat, but as every good lawyer know, the law is in the details. The application is the key.

Land for peace is a classic example. Much of the Religious Zionist world believes that ceding land is wrong. Others argue that saving lives is paramount. Which group is right? I think both make compelling arguments from a halachic and moral standpoint. But if both positions are reasonable, then in what way are Jewish ethics anymore objective than Peter Singer's? Singer and other Utilitarians might disagree about animal rights (even if for the most part they agree about the general principle of the greatest good for the greatest number), just as we disagree about land for peace. Who's right? I don't know. But let's not pretend that believers have access to some divine morality that is clearly defined in every situation.

The Coolest Thing In History

Check out this new self-parking Lexus. Wow. My only question is whether it can fit into those tiny spots in the City.

On The Mets And The Rest Of The Postseason

I wanted to write about this last week but life got in the way. So here goes:

1) Wow, the Mets blew it. For all the talk about how the Yankees choked, the Mets lost to an inferior team mainly because their hitting (clearly the best in the NL) didn't get the job done. One run off Jeff Suppan all series? No more than two runs off of Jeff Weaver in any game? Barely touching a mediocre (to put it mildly) bullpen? Come on.

2) The Mets starting pitching was supposed to be its Achilles heel, but John Maine and Oliver Perez were good enough to win the last two games. Both weren't spectacular and left too many pitches over the plate, but were helped out by an average offensive team that was terrible because of the injuries to Rolen and Edmonds. Preston Wilson and Juan Encarnacion were absolutely horrid, and Rolen couldn't catch up with a high fastball all series. How could the Mets lose that series?

3) Was there a better situation for the Mets than Carlos Beltran up with the bases loaded and two outs with a chance to tie or win the game? He had a 1.180 OPS with runners in scoring position and two outs this year. Striking out looking on three pitches has to be the worst possible outcome I could think off.

4) Endy Chavez made one of the best catches (given its importance) in baseball history.

5) The Cardinals are the worst World Series team of the century (and probably since I started following baseball). They only had one pitcher with an ERA under 4 and only two with an ERA under 5. They have no relievers with an ERA under 3 on the postseason roster. They have only one starter with a .300 average (guess who?). Juan Encarnacion looks like he couldn't hit a ball with a shovel right now and Preston Wilson swings at everything. Their catcher (a .216 hitter) is managing to put up good numbers in the playoffs, but that won't last. .216 hitters don't usually bat .300 in the postseason.

6) If Detroit played like they did on Saturday night during the Yankees series, the Yanks would be up 2-0 with the Big Unit on the mound tomorrow night.

Why Dawkins Is Way Overboard

Thomas Nagel reviews Richard Dawkins' God Delusion in the current edition of the The New Republic (Subscribers only). Although Nagel is not religious, he opposes Dawkins' attempt to delegitimize religion. Most importantly he takes issue with Dawkins' rejection of the proofs for G-d, especially the argument from design.

Put simply the argument from design looks at a sophisticated piece of machinery (a watch for example) and notices that it could not have come about on its own. It therefore concludes that the universe, which is infinitely more complex, certainly must have a creator.

Dawkins challenges this argument on two grounds, the positive and negative. His negative argument finds the flaw in the argument, that it only moves the question one step further back: Since G-d is even more complex, who created G-d? The positive rejection notes that universes and life are not like machines. Life is dynamic and came about slowly over billions of years. Watches can't build themselves, but millions of interactions over billions of years could rationally lead to human life.

Nagel takes issue with Dawkins' negative argument, arguing that he fails to understand its significance. He states that

If the God hypothesis makes sense at all, it offers a different kind of explanation from those of physical science: purpose or intention of a mind without a body, capable nevertheless of creating and forming the entire physical world. The point of the hypothesis is to claim that not all explanation is physical, and that there is a mental, purposive, or intentional explanation more fundamental than the basic laws of physics, because it explains even them.

In other words, G-d works outside of the physical reality and as such is not subject to its rules. Hence he would not need to be created. I agree with Nagel that Dawkins' counterargument here is poor.

Nagel responds to the positive rejection by noting the complexity of DNA and how natural selection does not explain it adequately. For Darwinian natural selection to have come about, the organisms subject to mutations (ok maybe not the word Darwin would have used) must have a type of genetic code which allows for mutation. But how did something as complex as DNA come about?

Even Dawkins notices the problem. His answers (according to Nagel) are basically the anthropic principle (that there are billions of possible worlds and our world ended up being the lucky one). Not a very good answer.

Nagel's best point comes at the end of the article. He focuses on how scientists, especially afraid of how religion curtails scientific thought, have searched for a physical answer for everything. The philosophical dispute about Materialism is based on this point. Is there a physical source for our thoughts, desires, and ideas?

Assuming that we can use "reductive physicalism" to answer all of life's questions is a fallacy. As Nagel puts it,

This reductionist dream is nourished by the extraordinary success of the physical sciences in our time, not least in their recent application to the understanding of life through molecular biology. It is natural to try to take any successful intellectual method as far as it will go. Yet the impulse to find an explanation of everything in physics has over the last fifty years gotten out of control. The concepts of physical science provide a very special, and partial, description of the world that experience reveals to us. It is the world with all subjective consciousness, sensory appearances, thought, value, purpose, and will left out. What remains is the mathematically describable order of things and events in space and time.

That conceptual purification launched the extraordinary development of physics and chemistry that has taken place since the seventeenth century. But reductive physicalism turns this description into an exclusive ontology. The reductionist project usually tries to reclaim some of the originally excluded aspects of the world, by analyzing them in physical--that is, behavioral or neurophysiological--terms; but it denies reality to what cannot be so reduced. I believe the project is doomed--that conscious experience, thought, value, and so forth are not illusions, even though they cannot be identified with physical facts.

Nagel is right. There is no evidence that science can solve all of life's problems. It's a method that works well to describe the physical reality, but is no more qualified than religion when answering metaphysical questions or searching for epistemic truths.

Wow, Don't We Sound Good Now....

Listen to this clip.

Made me cringe but I have to admit, it's funny at times. The only question I have is whether the girl's father is going to kill her now or when she comes home.

Liberal Hysteria

In Quiet Revolution, Supreme Court reporter Dahlia Lithwick makes an unbelievable claim about what the post-apocalyptic world would look like:

"What would happen if Clarence Thomas and Antonin Scalia got their way? What is their vision for America? And if you say to people what their vision is: Say goodbye to worker's rights. Say goodbye to environmental protection. Say goodbye to women's rights. Say goodbye to the rights of the disabled. Say goodbye to all the progress we've made in terms of race and gender in this country, and privacy."

That's like saying if Roe was overturned, then abortion would be outlawed across the country.

Hat Tip to the good people over at Volokh.

Update: I finally watched the video, which I found to be unbelievably tendentious. They show how the "American people" opposed Bork, but neglect to mention how Scalia was confirmed unanimously. They attack the opposition on the to the constitutional right of privacy, but forget to tell us how Hugo Black, staunch defender of civil rights, dissented in Griswold.

The video makes it seem like "ultra-conservatives" (you know the people from which 3 out of the last 4 Presidents came from and the group that has controlled the House since 1994) have a clear plan to take over the country and impose their will by getting their people on the bench where they could actively entrench conservative values and overturn all the "progress" we made over the last 70 years.

They complain that judges Scalia and Thomas have a radical (!) view of the Commerce Clause (imagine saying the clause doesn't afford Congress plenary power) and that they support the President's view of the unitary executive (only partially true as anyone who read Scalia's opinion in Hamdi will know).

Put simply the video ignores context and eschews nuance and balance for the sake of emotion and politics. I'm sure conservative groups do the same thing, and send me a similar video and I'll bash it just as much.

Is Compulsory Participation A Good Idea?

Although I've missed it, there has been a raging debate between law students and professors about the justness of "cold calling" students. For the uninitiated, cold calling is when the professor randomly calls on students (yes, like everything else in law we just made up a fancy name for an obvious concept).

The debate started when a professor recounted the previous day's events, when a student was not only unprepared for class, but wasn't paying attention (gasp!). The professor decided to penalize the student by decreasing his grade and calling on him every day for the rest of the semester. However, he realized that this tactic was unfair to the rest of the students and was "not nearly severe enough" so he decided to ask around for ideas on how other professors penalize their students when they dare enter class without knowing the intricacies of Pennoyer v. Neff (yes, I realize I'm exaggerating here).

But let's ask the obvious question: should professors call on students at all? Should they even take questions and comments or allow students to volunteer?

Amazingly most the thread and subsequent posts focused on the second question. They made arguments supporting the proposition that interaction is beneficial to understanding and learning, or that "[s]tudy after study after study indicates that just listening to lectures is NOT the most effective way to learn pretty much anything" or even that class participation could be used as a measuring rod for prospective performance on the final exam.

Of course the answer would be to make attendance and participation optional and allow students to participate. I agree that professors who lecture and won't allow questions or students the chance to be faced with responding under pressure are doing their student's a grave disservice.

That said, I don't see how the argument that education is better served when students can participate leads to the conclusion that students should be forced to participate. Sure it might be a benefit to the student, but since when are paying customers (and that's what we are) obligated to take benefits?

The few response to the "students are customers" argument either center on the idea that students aren't customers, or that we just don't know enough and the professors know better.

One professor argues that teachers would be derelict if they allowed students to slack off. Here's his argument:

I agree that someone who takes swimming lessons is a "consumer" of that educational lesson, but that doesn't mean a swimming teacher is fulfilling her responsibility if she allows a putative student to say, "I paid for you to tell me how to swim, and I'll do it on dry land, thank you very much." The teacher is fully entitled to say, "I know how to swim and you don't. I know how to teach someone to swim, and you don't. My job is to teach you how not to drown, and I believe it requires you to get in the water. If you don't like it, go elsewhere."

Assuming the customer is a competent adult, I just don't understand why the teacher isn't completely morally within her rights to say just allow the student to jump around on dry land. The teacher should of course inform the student that swimming is done in the water and that she cannot teach the student properly if he refuses to jump in. But why must the teacher "force" student to learn?

Moreover, as numerous commentators pointed out, many law students simply come to school to pass the tests and get that degree. They aren't interested in learning to "think like a lawyer" (if such a thing even exists). They are paying tens of thousands of dollars to receive a degree that will be a gateway to a high-paying job. In that case it's the teacher's job (at least using the above argument) to facilitate their ability to receive that job, not to teach them a "special" mode of thinking.

Another argument is that students are subsidized by the government, through loan breaks on the state and federal level. Even if that argument is true, and therefore students are not consumers in the usual sense of the term because law schools have a responsibility to other actors, I fail to see the connection to how professors should force students to read the material and respond to questions. In fact it's not that the law schools have diverse responsibilities; the students are responsible to become good lawyers. Even if someone could prove the utterly implausible link between reading for class and participating and becoming a good lawyer, I fail to see under what moral theory the professors are allowed to impose on students their obligations.

In a follow up Dimino explicitly makes the argument that professors know better and should be allowed to do what's best for the students (he also makes a minor argument about how forcing students to participate weeds out the poor students, which is a legitimate aim, but one that could be fulfilled through a variety of means with far less cost). Students need to learn to be professional, and being forced to prepare for class will do that.

Right, students with at least one college level degree have no idea how to be professional. Only through forced preparation can they learn to be good, professional, on the ball lawyers. It's not like the punitive measure of, say, being fired might convince them later in life to actually read the briefs and cases on point. Nah, they need a "superior" professor (who I'm sure has numerous degrees in education and has mastered all the penological methodologies out there) to teach them work ethic. Apparently, Dimino thinks none of us has graduated 5th grade.

The Yankees: A Post-Mortem

Normally I want to watch my team end its season, win or lose. Watching a team fail gives me closure, and although it's hard, I'd rather be there as they go down. But I must say that I'm glad the Yankees lost on Yom Tov. I realize Detroit is a good team, but there is no excuse for the Yankees to score only 3 meaningless runs in two of the most important games. Something has to give. It's hard to describe how an offense this loaded with talent, with this much diversity (the Yanks were at the top of the league in stolen bases and home runs), with this much experience, could fold so quickly and easily. The Yankees didn't even put up a fight.

I don't want to diminish Detroit's accomplishments against the Yankees and over the course of the season -- they did lead the majors ERA in a division with the Indians, White Sox and Twins -- but we have to expect more from a team with all-stars at every position.

What needs to be done? I'm not sure firing Torre is the answer. Looking at the big picture, we can take solace in the fact that during Torre's 11 year tenure in the Bronx the Yankees have made the playoffs 11 times (including winning the division 9 times, including 8 in a row), won the championship 4 times, won 6 pennants, and played in the ALCS 7 different years. Not too many teams would look askance on winning the pennant more than half the time during a manager's stay.

But this is New York and these are the Yankees. "Just" making the World Series (something they haven't done in three years) is not enough. George Steinbrenner expects championships, and who can blame him? He ponies up the cash for the biggest payroll in sports history, and merely coming close is not a good enough return on the dollar.

So what am I looking for the Yankees to do? I have a few recommendations (none of which call for trading A-Rod unless we can get a big-time pitcher in return).

1) Shore up the bullpen. With the exception of Rivera, who is still great but getting up in years, the bullpen is inconsistent and mediocre. Farnsworth was a mistake from the start, and while Proctor isn't bad he cannot be the key setup guy for a championship team. Villone, Myers, and Bruney are adequate, but they need a big-time pitcher in the pen.

2) Get another big name starter. The two biggest names on the block are Barry Zito and Jason Schmidt. Rumor has it that Schmidt wants to stay on the West coast, so Zito is the big pitcher left. There will be a bidding war for one of Scott Boras' most recent clients, but when it comes to money, the Yankees always prevail.

The question is whether they should go after Zito at all. Although he was great in the beginning of his career, his numbers tapered off until his resurgence. Moreover, he has played his whole career in a pitchers park, so we can't really project anything from those numbers.

Nevertheless a few factors portend future success in the Bronx. Zito is a lefty and while overall the Stadium is a hitter's park, lefties do substantially better because of the deep power alleys in left center. Furthermore Zito pitched relatively well in the playoffs and doesn't seem like the type of pitcher who will wilt under the New York spotlight.

Zito is a risk, but there's no choice. With the exception of Wang, the Yankees don't have a single reliable pitcher on the staff. Mussina is getting old and Randy Johnson is done. Maybe Philip Hughes is the answer, but something proactive must be done.

3) Do not pick up Sheffield's or Mussina's option. Maybe bring them back at a lower price, but if they leave, thank them for their time and send them off. The aging superstar cannot play a major role in the Yankees' resuscitation.

There are no easy answers, and nothing I've said here is novel. The lineup is unbelievable and the defense is adequate. But what they need is pitching because pitching is what gets it done in the playoffs. And the playoffs is where the Yankees' failure is most evident.

National League MVP

Ok, this one is much easier. The American League had a number of candidates from a variety of competitive teams. The National League has far fewer competitive teams, which limits the number of qualified candidates.

Basically it boils down to Albert Pujols vs. Ryan Howard (with a nod to Carlos Beltran).

First we'll start with Beltran. He had a "paltry" OPS. of .982. But like Jeter, his numbers go up as the situation becomes more important. An OPS. of 1.159 with runners in scoring position and a 1.180 OPS. with runners in scoring position and two outs is not too shabby. Moreover, he has 38 Win Shares, 1 beyond Pujols, who leads baseball. His VORP of 67.6 is mediocre compared to Pujols and Howard, however.

But we must remember that he plays a gold glove center field and stole 18 bases. And given Rule 1, I might be willing to put him ahead of Howard, but Pujols is too much better.

Howard's big advantage is his games played. Howard played in 159, compared to Pujols' 143 and Beltran's 140. He also has a high 1.084 OPS. and an OBP. of .425, far better than Beltran. But like David Ortiz and Frank Thomas, his numbers are deceiving. He hits far better with no one on than with runners in scoring position (he batted .256 with runners in scoring position and .247 with runners in scoring position and two outs). His OPS. in both circumstances is below .950.

He also doesn't play much defense and he only had 31 Win Shares.

Let's look at Pujols. An OPS. of 1.102 only increases with runners in scoring position (1.337) and with runners in scoring position and two outs (1.407). He had a mindboggling .581 OBP. (and a .435 average) and a .826 SLG. His OPS. is just a tad shy of 1.300 with runners on and two outs.

He had 39 win shares, a 86.6 VORP (5 runs better than Howard) and practically carried his mediocre team to the postseason.

If I had to rank them I'd probably go with Pujols, Beltran, and Howard. Howard vs. Beltran is tough because of Howard's extra games, superior OPS., and substantially better VORP. Beltran plays (much) better defense, hits better in big situations, and has 7 more win shares.

Pujols, however, has the best OPS, batting average, OBP., SLG., OPS., OPS. with runners on and two outs, with runners in scoring position, and in scoring and two outs. He also has the most Win Shares and the highest VORP. And he singlehandedly led his team to the playoffs.

I can't see Pujols not winning this award. It's not even close.

Jeter For MVP

And now for the rare sports break....

I'm going to lay it all out on the table. I'm a Yankee fan and, yes, I'm biased. But I think one can make a strong argument for Derek Jeter as AL MVP.

First I'm going to lay out the ground rules.

1) The MVP can generally only come from a team that is in contention. In the extraordinary case where a player from a bad team has a spectacular season and his competition from the good teams are mediocre, it might be possible. However, this season is not an example of that rare situation. My argument assumes that a player's value on a poor team is less than a similar player's value on a good team, everything else equal.

Assume player X's value adds 10 wins to his teams total and they make the playoffs. Now further assume that player Y's value adds 20 wins to his teams total and they only lose 90 games instead of 110. Which player is more valuable? If we assume that making the playoffs is the most important attribute of a team's (regular season) performance, player X's increase to his team's performance is greater than that of player Y's to his team.

Moreover, everything works on a spectrum. On the right end is the playoffs; on the left is a miserable season. The farther left a team is, the better its players must do. As we move to the right, a player's value increases and his numbers need not be as good. If a team makes the playoffs, its players are equal to the players on the other playoff teams.

2) The number of games a player plays is very important. Even if player X is great on a per-game basis, if he only plays 120 games he is requiring his team to play a backup for 42 games. If player Y plays 162 games at a worse per game basis, he could be more valuable overall.

3) No pitchers. They're too hard to compare to players.

Some minor rules:

A) While OPS. (onbase percentage plus slugging percentage) is the most important stat, OBP. (onbase percentage) is the more important. I'll explain why. OBP. measures how many times a player reaches base, or put in a different way, how many times a player does not make an out. SLG., on the other hand, measures what a player does in those instances when he gets a hit. A player's job is to not make an out. Outs are the currency of baseball because they are finite. A player who does not use up his team's currency is more valuable than a player who scores runs every time he gets a hit, but makes far more outs. The former gives his teammates more opportunities to score runs.

B) Hitting is more important than fielding, baserunning, and intangibles. But those are important as well and can add a lot to a player's value if the hitting measures are close.

C) Not all hits are born equal. A hit with a runner in scoring position is more important than a hit with no one on base.

OK, here we go. Given my above rules, Travis Hafner and Manny Ramirez are ineligible under Rule 1 and 2 (The Red Sox haven't been competitive since August) and Grady Sizemore under Rule 1.

Here are the other candidates who are left:

1) Derek Jeter
2) David Ortiz
3) Vlad Guerrero
4) Jim Thome
5) Jermaine Dye
6) Paul Konerko
7) Joe Mauer
8) Justin Morneau
9) Frank Thomas
10) Jason Giambi

Three of these players are DH's, which means they are zeros at defense. Now that's not necessarily a bad thing because other players might be negatives defensively. But they don't add anything defensively.

Weeding Out The Pretenders

From this list Ortiz has the highest OPS. But numbers can misleading. Take a look at Jeter's numbers (via Yahoo Sports). His numbers actually increase when runners get in scoring position. Now compare those numbers to Ortiz. Look at how his numbers go down as the situation gets more important (with the exception of bases loaded). Jeter actually has a higher SLG. with runners in scoring position and with runners in scoring position and two outs. His OPS. is higher in both those scenarios as well.

33 of Ortiz's HRs came with no one on base. With men on and two outs, he only had three more RBIs than Jeter.

Despite Ortiz's superior OPS. numbers, it's hard to justify giving the MVP to a player whose numbers went down as the situation became more important. And I haven't even started looking at the other advantages Jeter has.

Next we can knock off Vlad Guerrero. His OPS. is only .34 points higher than Jeter's and his batting average is lower. While his OPS. with runners in scoring position and two outs is a few points higher than Jeter's, his OPS. with runners in scoring position is paltry. One might argue that no one pitches to him with runners in scoring position, but then how do explain the 62 point difference in OBP. between him and Jeter?

Furthermore Rule 1 comes into play here. Given that Jeter is a shortstop, has better overall numbers with runners on, and stole 19 more bases while being caught the same number of times, Jeter wins.

Next comes the White Sox bashers. First remember Rule 1 applies (although it would only matter if the numbers are almost even).

Jim Thome's OPS. is much better than Jeter's with runners in scoring position. However his OPS. with runners in scoring position and two outs is almost three hundred points (!) lower. The disparity with bases loaded is even worse.

Thome does have a higher OPS. with runners on and two outs (although he has a lower AVG. and OBP.). But Jeter has the advantage in intangibles. He has far more stolen bases, plays a gold glove shortstop and his VORP is 16 runs higher (put simply, Value Over Replacement Player is the measure of how many runs a player creates over a replacement player who would have to play if the starter was injured or traded). Applying rule 1, Jeter has to get the nod.

I'll look at Dye later, so next comes Paul Konerko. Konerko is an easy one. His OPS. is barely 30 points higher and Jeter has better numbers across the board with runners in scoring position. If Thome can't top Jeter Konerko sure can't.

Now we come to Justin Morneau. Morneau suffers from the same problem as Konerko. Jeter has much better numbers with runners in scoring position, a substantially higher VORP, and six more Win Shares (more on this in relation to Dye). And to top it off, he wins in the position, baserunning, and intangibles category.

Frank Thomas is no better than Morneau or Konerko. He has a monster OPS. with no one on and no outs, but his numbers go down in other situations. Nope.

Jason Giambi is surprisingly good. His numbers with runners in scoring position are better than Jeter's and he's almost as good with runners on and two outs. However his VORP is over thirty runs worse than Jeter's and he played 15 less games. And he has ten less Win Shares.

The Real Competition

The three best candidates are Jermaine Dye, Joe Mauer and Derek Jeter.

Let's compare Dye first. His OPS. is 100 points higher, and his OPS. with runners in scoring position is about 70 points higher. His OPS. with runners in scoring position and two outs is a little lower, but Jeter has a huge advantage in OBP. in both situations. His bases loaded numbers are substantially lower. With runners on and two outs Dye has a much better OPS. and Jeter's OBP. advantage is only 30 points. It's close but Jeter wins because of Rule 1, baserunning, position, VORP (almost 14 runs), and Win Shares (Win Shares are a measure of how many wins a player adds to a team). Jeter had 33 wins shares to Dye's 26. And what do you know? 7 wins is the difference between the Yanks (best record in the league) and the White Sox (not in the playoffs).

Mauer is even closer. His OBP. and SLG. are slightly better, making his OPS. 34 points higher. His OPS. with runners in scoring position is a little lower (1.041 to Jeter's 1.063) with a higher OBP. (.497 to .482) and his OPS. with runners in scoring position and two outs is much higher (1.200 to Jeter's 1.075). Runners on and two outs is a staggering 1.181 to .996 for Jeter.

These numbers are big disparities. It's very close but Jeter wins for a few reasons: His VORP is almost 13 runs higher, Jeter has two more Win Shares, he stole substantially more bases (and is an excellent baserunner), and I have to give him the advantage in intangibles.

Jeter vs. Mauer might be a case where my Yankee bias shines, but I think I've made a strong argument for Jeter against all the other players.

Jeter For MVP!

Next up will be NL MVP, which is much easier.

Shana Tova

I'm in a rush after a long selichos this morning starting at the nice ripe time of 8:30 AM (after davening), but I want to wish everyone a chag kosher v'sameiach and a gut gebenched yur.

I Don't Understand The Attack On Evolution

Opponents of evolution abound, but rarely do we see one who isn't religious. What I don't understand is the opposition to evolution from religious people.

The assumption that evolution is (as our dear friend the Frumteens Moderator put it) "the only existing apologetic for atheism" is obviously a non sequitor. If evolution were to be falsified tomorrow, atheists would be in the same position as believers -- they both would have no scientific explanation for how man came about. But from the perspective of someone who doesn't believe in G-d because there is insufficient evidence of his existence, he is no worse a position that I (an Orthodox Jew) am.

And that's why I don't understand the crusade over evolution. Evolution says nothing about G-d (although it does contradict a literal reading of the Torah). A believer can argue that the world was created in a way to make it appear old (although this argument does create theological difficulties) and therefore discount evolution on theological grounds.

Attacking evolution makes creationists appear desperate and foolish because anyone even minimally versed in the sciences will know that evolution is a rock solid principle. Wouldn't it be better for someone like Frumteens to just respond that evolution is scientific and is built on a different set of assumptions that religious Judaism? What is actually gained by attacking evolution?

Aharon Barak: An Activist Judge Par Excellance

So says Larry Derfner in yesterday's Jpost. In Derfner's eyes a judge with a Jewish impulse (which is basically synonymous with a liberal impulse) will extend democracy to protect insecure minorities. This argument presumes that the function of the judge in a democracy is to afford democracy to the minorities who would be swallowed up by the majority if left to their own devices.

Now if any of you have read my last post, you'll know that I don't oppose judicial review per se. In fact, I cannot deny that the contramajoriatarian difficulty is illusory because the judge is empowered to overturn the will of the majority if they violate the compact they consented to make the supreme law of the land. The difficulty only adheres when the judge exceeds his power and nullifies legislative action without constitutional support.

Barak, who is a brilliant legal jurist by any measure, argues that democracy is more than simply the will of the majority and contains substantive elements such as (among others) the rule of law, separation of powers, and human rights. The goal of the judge is to balance the procedural element (majority rule) with the substantive elements (human rights). These elements are fundamental and not subject to opinion polls.

I don't need to explain my problems with the above argument. I might agree that democracy is substantive in nature, but I firmly disagree with the proposition that unelected judges are better equipped to determine fundamental rights than anyone else. On what basis should the judge decide that the substantive outweigh the procedural violations?

My biggest problem with Israel's "constitutional" order is the lack of judicial power to overturn laws in the first place. Barak acknowledges that Israel lacks a formal constitution, but proffers the existence of an immutable, unwritten constitution embedded in the Basic Laws. Barak claims that when the Basic Laws are contradicted by ordinary legislation, the legislation is void.

Barak envisions similarities to our system, where the Constitution reigns supreme (even more to the point he extrapolates the inference in Marbury that created judicial review in the US to the situation in Israel). But there's a piece missing: even if we assume that basic laws are extra-legislative (a weak proposition), on what basis can the courts overturn laws? Not every country with a democracy has judicial review. For example Switzerland's courts lack judicial review, and the Swiss don't seem to have fallen prey to despotism. For judicial review to exist, the Basic Laws must be supreme and courts must be authorized to enforce its superiority.

But Derfner would want Barak's successor to continue in this tradition. While I am all for protecting minority rights from the tyranny of the majority, I am unaware of how a judge's discretion could be cabined absent a written constitution. The fact that Barak could impute legal superiority in the Basic Laws and then infer from that superiority that judges could enforce the laws over ordinary legislation shows the extent of the exceptional jurist's creativity. But creativity is a double-edged sword. It could be used to justify anything. How can we protect the majority from the tyranny of the minority?

As an aside, Derfner is just plain wrong on some points. For example he notes that "[i]f not for the US Supreme Court, blacks in the South might still not be able to vote. " This statement is patently wrong. The right to vote without distinction of the basis of color was guaranteed by the 15th and 24th Amendments of the Constitution and by the congressional legislation such as the Voting Rights Act of 1965. The courts had little to do with it.

I also find it amazing that Derfner neglects to mention a great Jewish justice who did not participate in the "Jewish tradition" of neglecting the will of the majority: Felix Frankfurter. Frankfurter is considered one of the most conservative justices of the 20th century because he consistently deferred to the elected branches on policy issues. Did Frankfurter fall outside of this tradition, or is it possible that the Jewish approach to judging is not as monolithic as Derfer would have us believe?

My Political Philosophy Unveiled I

Over the next few posts I intend to outline my political philosophy as it relates to American politics. My philosophy is certainly conservative as it's defined today, although I do not toe the party line on every issue. I intend to lay out my views on law, economics, moral legislation, foreign policy, the purpose and function of government and more. I decided to start with law, since that's the easiest field for me to explain and will probably be the most fully developed position I have.

What is the purpose of law? What is the function of judges in our legal system? And how does the Constitution interplay with democracy and law in general?

Without getting too esoteric, law is designed to facilitate beneficial relationships between parties by ensuring that certain forms of conduct will lead to clear, defined and predictable consequences. When two parties make a contract, the law protects both parties in the case of a breach. The law's protection affords both parties the opportunity to enter into that contract and to rely on the law to ensure that the contract is upheld, or that the breaching party will be subject to sanctions.

In every western legal system, judges are entrusted with interpreting the law. The United States has a fairly well delineated separation of powers, which grants the legislature the power to make laws, the executive branch the power to execute them, and the judiciary the power to interpret them.

The underpinnings of the legal system is the idea of consent, which is rooted in our democratic/republican system of government. The people choose their representatives, who then create and execute the laws. The people consent to those laws by voting (or by choosing not to vote) and everyone is bound by them.

The problem is when the Constitution runs contrary to the will of the people as evidenced by their elected representatives. Alexander Bickel called this problem the "countermajoritarian difficulty." How should a judge interpret the Constitution and the statute in question if the result will be to nullify the statute and therefore the will of the people?

In my mind, the difficulty is negated if the judge interprets the Constitution faithfully according to a legitimate interpretive methodology. If we presume that the Constitution is binding and is superior to any legislative-made law, then there's no difficulty. The Constitution wins out even if the present will is to enact a law that opposes the Constitution. As long as the Constitution is morally binding on the citizens of the United States, they cannot legislate contrary to its express provisions.

Since the purpose of law is to facilitate relationships by creating a public record of legitimate and illegitimate conduct, laws must be interpreted based on their plain meaning. I'm a textualist, which means I support interpreting legal texts according to their plain meaning. Intentionalism, which means interpreting a text based on the author's intent, confines the text to the less public intent of the author, which mitigates the public nature of law.

When interpreting the Constitution, I am an originalist. What that means is that I support interpreting the text based on the original public meaning, which in the nomenclature I've been using until now is the plain meaning of the text when the Constitution was enacted (or ratified). Originalism is merely the logical extension of textualism in that both search for the plain meaning of the text based on the time period during which the text was formulated.

An originalist judge does not run into the countermajoritarian difficulty when he is faithful to his methodology. If the plain meaning of the text is the proper interpretation of a text, and the text is binding to the extent that it negates the contramajoritarian difficulty, then the judge did not violate democratic norms by negating the will of the majority. However if the judge interprets the Constitution based on an illegitimate method, he is circumventing the will of the people and is "actively" legislating, because it's not the Constitution that is negating the will of the people, but rather the judge. Unelected judges overturning the will of the people would seem to run afoul of the democratic underpinnings of our republic.

One thing I will admit is that law is often not determinate. Sometimes we cannot find the plain meaning or there might be more than one meaning. In that case judges are allowed discretion, but unlike Randy Barnett I would impose a presumption of constitutionality instead of a presumption of liberty. Laws enacted by the people should not be overruled unless on the basis of clear evidence that the Constitution's original plain meaning opposed the law.

Would I consider any other method legitimate besides for originalism? As opposed to Robert Bork, I could envision other methodologies that would fit with my conception of law, and would place them on par with originalism. I have yet to see any other interpretive methods that fit this description, but they could be out there or perhaps they haven't been discovered yet. Maybe.

I do know that pragmatism or moral interpretations are flawed from the get go. Pragmatism, put simply, is the idea that constitutional interpretation cannot be practically guided by higher principles, and all that is left is judges weighing the costs and benefits of a specific law. I disagree with Richard Posner that originalism is untenable, and therefore I view his pragmatic enterprise as nothing more than judges legislating (something he readily admits, which I give him credit for). Ronald Dworkin's moral interpretation is flawed for a different reason. Judges are appointed and elected to interpret law because they are more knowledgeable than the average citizen. But judges are no more qualified than anyone else (in fact they may be less qualified than some people) to make moral determinations.

Dworkin's moral interpretation is an admission that legal texts can have different meanings. Originalists admit that as well. But unlike Dworkin, who requires the judge to decide between competing interpretations based on moral philosophy, serious originalists allow constitutional constructions that do not contradict the original understanding of the Constitution as a whole. A judge should use his discretion, which is something that is usually rooted in intuition and experiences, but not impute his moral views into the Constitution.

Some people argue that originalism is just conservative activism in more respected clothing. In other words conservatives support originalism because it leads to the outcomes they most often desire. Even if this contention is true (which it isn't) I fail to see the problem. If the only flaw with the originalist enterprise is that people suscribe to it because it leads to conservative outcomes, then I don't see a problem. What's wrong with choosing an ideology based on outcomes? The problem is when people decide individual cases based on outcomes. If a person binds himself to a certain methodology, and sticks to it through and through, he'll likely come across situations where his political preferences are trumped by his interpretation of the law. As long as he locks himself into a methodology, the interpretative method is not flawed based on its reaching the best outcomes in most cases.

I've simplified my views to a degree and left a few points out (for example the interplay between originalism and precedent), but I believe my basic legal philosophy has been laid out.

Could Israelis Be Tried For War Crimes?

Since the end of hostilities in Lebanon, human rights organizations have been collecting evidence to bring war crimes charges against various Israeli officials. Could Israelis be tried for war crimes and crimes against humanity?

In today's world there are three mediums were such cases could be brought: the International Criminal Court (ICC), ad hoc UN tribunals (such as those used to prosecute Milosevic and Rwandan leaders), and European countries which recognize that war crimes and crimes against humanity are under universal jurisdiction, which means that any country could try those cases.

Israel is not a signatory to the Rome Statute of the ICC, and therefore none of its nationals could be tried in the court unless they committed the crime in the territory of a state which did ratify the treaty (Article 12(2)(a-b). Lebanon is not a signatory, so the ICC, by its own terms, cannot execute jurisdiction over any Israeli citizens.

Ad hoc tribunals could be created under Chapter VII of the UN Charter but have gone out of vogue now that the ICC is in operation. Plus, the US would undoubtedly veto the creation of any such tribunal, even if opponents of Israel could get the rest of the Security Council to agree.

Countries that consider war crimes to fall under universal jurisdiction are the best forums to bring these claims. It's interesting to note that Israel, in the Eichman trial, was one of the first countries to assert universal jurisdiction, so no one can claim that universal jurisdiction is a liberal European creation.

Belgium became famous after its problems relating to the prosecution of Ariel Sharon in 2003, and its subsequent amendment to the universal jurisdiction law that cut back on the scope of that jurisdiction. The case became moot once the law was amended to limit its application to crimes committed subsequent to the enactment of the universal jurisdiction law. The court also dismissed the case based on the idea of diplomatic immunity, which immunizes a sitting head of government (or state) from prosecution. Belgian diplomats understood the political ramifications of an unbridled universal jurisdiction law, and quietly put the extensive conception of the law to sleep.

However, even with the amendments Belgium still allows prosecutions of officials who do not have immunity in cases where the alleged crime occurred subsequent to the law's enactment. Moreover, other countries have similar laws. So could Israeli generals, or even Amir Peretz, be tried in England or Belgium?

In theory probably. In practice it's unlikely (to say the least) that an Israeli general will tried in England, a country which is currently fighting a war in ways that I'm sure are not pristine by human rights advocates' standards. Furthermore the political fallout from trying a high ranking Israeli official in a European country is probably too great for any country to shoulder.

In 2005 Doron Almog refused to step off an El Al plane after he was tipped off of his impending arrest. In my mind, if Almog was arrested, England would probably have pardoned or released him in a similar way or possibly even modified their law, as Belgium did in 2003. It's hard to imagine a democratic country trying a fellow democracy's generals for crimes they didn't commit against the former's citizens or in its territory.

In practice universal jurisdiction laws only work against dictators and weak countries. The political ramifications of trying former Congo leaders are minimal, so the country is willing to prosecute. But trying a general of a first world democracy with an extremely powerful backer is a whole different ballgame and could lead to a game of tit for tat. None of that is in Belgium or England's best interests.

9/11: A Rememberance

Having just finished davening Shacharis because President Bush's visit to the firehouse in the Lower East Side blocked my access to shul, I decided to write about how 9/11 affected me.

Just like this morning, I went to a later minyan that bright sunny morning. At about 9:10 I was finishing davening when my chavrusa came into the shul/beis medrash and informed that that two planes hit the two towers. I thought that was pretty scary and figured the crashes might have been intentional, but I did not understand the magnitude of the collisions. I imagined two single engine jets bouncing off the side of the buildings, with only minor casualties.

I came upstairs and went into Morg Lounge (a lounge in one of YU's dorms) and saw the two towers burning. Even then I didn't quite comprehend what was going on. Yeah I understood people probably died, but it didn't really hit me that the people above the crash sites probably were going to die. And of course I never dreamed the towers would collapse. The Twin Towers were designed to withstand all types of elements, including a plane crash.

I watched a little and then went to learn. I couldn't really concentrate so I went back up to watch. The process repeated itself a few times, until my roommate came down and told me one of the towers fell. That shocked me.

I grew up almost idolizing the Towers. They were a symbol of strength, a symbol of New York and by extension America. Bring down the Towers represented bringing down New York. I had great pride in New York and despite its myriad flaws, New York was my city and the America was my country.

Never before had I experienced an attack on my country. Sure I considered Israel my country as well and I intellectually understood that Israel was constantly under attack from terror. I had seen pictures of the Sbarro bombing (a place I frequented during my two year tenure in Yeshiva in the Old City of Jerusalem), and I had experienced terror attacks in Jerusalem when I was there, but nothing compared to attacking a symbol of the country I grew up in.

By the time I made it upstairs the second tower had fell. Frankly I don't remember what happened after that. I do remember going to shiur and having no idea what was going on. I've spaced out and slept through shiurs, but I've never sat somewhere in shock for almost two hours having no idea what was going on. The day's events almost seemed surreal.

As I walked back from my failed attempt to go to shul today I thought about how my minor inconvenience paled in comparison to the horrible experiences the victims and survivors faced. As I stood by a barricade waiting to pass, I listened to my fellow citizens complain about being delayed a few minutes. I can't judge people without being in their place, but I think it's not the end of the world if someone comes fifteen minutes late to work.

Movies like United 93 and World Trade Center remind us how terrible the morning of September 11, 2001 really was. The minor inconveniences, such as having to wait a few minutes, or even the major sacrifices, whether by soldiers in Iraq and Afghanistan, or by ordinary citizens through the minimization of their liberty are just small prices we have to pay in memory on the 9/11 victims and to ensure that something like that never happens again.

NOTE: I am not taking a position on whether the war in Iraq makes us safer or is part of the war on terror. I am also not arguing that the NSA wiretapping program or secret prisons are a good idea. What I'm saying is that as we remember the horrible events of 9/11 we need to understand that some sacrifices are necessary to protect our freedom. The thing about freedom is that it is never free.

Intelligent Design Isn't Science

My wife brought home the most recent edition of Jewish Action (not available online yet) yesterday. In it there is a debate over the Orthodox position on evolution and intelligent design. Despite not being an area I'm especially knowledgeable about, I decided to take a look. The articles are pretty interesting, but I feel Nathan Aviezer's article explaining why ID is not a required Orthodox belief to have been the most compelling.

On the Shabbos before I got married I asked my cousin (who is a physics professor at NYU) whether he felt ID was science. His answer was simple: science is about explaining the world through natural means. ID presupposes (and actually bases itself on the idea) that certain organisms could not have evolved and therefore had to have been created by a designer, who designed (at the very least) those organisms though supernatural means. Moreover by assuming that those organisms originated via supernatural mechanisms, ID forecloses further scientific study into their origins.

Science cannot accept these conclusions. Supernatural explanations have no place in science; and proposing that certain areas no longer be open to study is anathema to the scientific enterprise. ID is a perfectly valid theological proposition, but it is no more science than the idea that demons cause disease.

Aviezer makes similar points, but adds to the argument. To assume that G-d can only be found in the "gaps," which are areas we cannot currently explain, pushes G-d to constantly retreat as science catches up. Every day we learn more and more about the world, and there's no reason to assume we won't figure out how every organism evolved. What happens then? Should we be limiting G-d to a tiny corner of science?

He supports the idea of guided evolution, based on the idea that the probability of the universe coming about as it did is almost nil. He posits that the anthropic principle supports the theory that something must have intervened to create the universe and that it's reasonable to believe that there was a designer who ensured everything fell into place in order that life could be sustained in our universe.

I don't find it surprising that a publication of the OU (whose head wrote a forward to Slifkin's new book) was willing to publish ideas that run contrary to contemporary charedi hashkafa. I commend them for doing so and allowing Aviezer to explain simply why evolution and Judaism are not in conflict.

What? How Did This Happen?

Apparently Pluto was demoted today to a "dwarf planet." Maybe I haven't been paying attention but this just came out of nowhere. Poor Pluto, it was good to know you.

Consent, The Shavuos, And Land For Peace

My last post dealt with an obstacle to those who argue that the Ramban/Minchat Chinuch deny Israel the discretion of whether to trade land for peace. Basically I argued that the Ramban clearly (Mitzvot Lo Taase 17) requires consultation and acquiescence with the Urim Vetumim and since it is no longer operative, no milchemet mitzvah for the purpose of capturing or retaining land can be undertaken.

In this post I'd like to deal with another response to the milchemet mitzvah argument. My thesis is based on Rabbi Bleich's position and is not entirely my own, but some is, to my knowledge, original. Any flaws in those arguments should not be attributed to Rabbi Bleich.

It is well known that the plain reading of the Ramban affirms that the mitzvah of settling Israel is required even today. Rabbi Bleich however argues that the Three Oaths negate the other half of the obligation, which is to capture the land. As he puts it, if the Oaths mean anything they must mean at the very least that Israel cannot capture land by force. A similar argument is made by the Megillat Esther, that the requirement to capture the land is only in force when we are not subjugated by the nations.

I spoke to Rabbi Bleich about this argument and mentioned that if the Oaths have the force to prevent Israel from having to embark on a milchemet mitzvah, why wouldn't they prohibit the original capture of land in 1948 (or even earlier)? Taken to their logical conclusion, the Oaths should prohibit the State of Israel completely. His answer, from what I could ascertain, is that the consent of the world mitigated the force of the Oaths and allowed the Jews to settle there. He noted that the Ohr Sameiach made the consent argument. (Others also proffered this argument). While the consent allowed the Jews to create a state in 1948, it did not require them to fight to defend any land captured subsequently. In other words, the Oaths did not apply then, but they apply today, and therefore the obligation to capture the land is suspended.

Thinking about it later I realized that the argument seems flawed. If consent allowed Israel to capture land in 1948, why shouldn't that same consent mitigate the Oaths today, therefore reinstating the obligation to wage war to capture Eretz Yisroel? What was so unique about that consent that it could suffice before the State was created but is nonapplicable today?

To summarize, the argument seems to go like this: The Oaths are binding as a halachic matter (I realize this argument is controversial and for some responses see Gil's translation of Rabbi Aviner's Shelo Yaalu Choma). They negate the communal requirement to capture the land according to the Ramban. Therefore as long as the Oaths are in effect, there is no obligation to retain land if transferring it will save lives. The Oaths were not in effect from the initial settlement after the Balfour Declaration (because of the sovereign's consent) but are in effect today. My question is: why?

I think the answer lies within a complex web of facts and law. First, it's important to understand what exactly has to occur for consent to negate the Oaths. According to the Maharsha, "building the wall" is allowed if done with the permission of the king. It's unlikely that the Maharsha truly meant to limit this concept to a king, and he probably meant the permission of the sovereign (The Ramban makes this point in regard to the obligation for a king to wage a milchemet mitzvah where he expands the concept to whomever is ruling the country at the time; see mitzvah 4 in the mitzvot our master forgot).

Who was the sovereign in 1919? The world as constituted in the League of Nations. It's important to remember that in San Remo in 1922, when the League of Nations created the Mandate for Palestine, sovereignty remained in the League and not in the British Crown. The British were merely administrators and did not have full sovereign rights over the territory (although they of course had some of the powers usually associated with the sovereign). At that conference, in a document that became public international law, the Mandate was designed to facilitate

the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine....

Contrary to the assertions of Frumteens a National Home is a State. But one thing Frumteens is right about: the Mandate did not support a Jewish State in all of Palestine, but only in part of it. It did not deny the possibility, but did not agree to help establish a sovereign state for the Jews throughout the entire Mandate. In other words, the consent of the sovereign in this case allowed the Jews to settle all of Palestine, and in theory to make it a Jewish State in its entirety. But if the Arabs decided to establish sovereignty in parts of the Palestine, the Mandate would have no objection.

The Jews settled the land and obtained sovereignty on May 14, 1948. Prior to then the British returned the Mandate to the League's successor, the United Nations. The UN, as we all know,
voted to partition the Mandate into two separate states. Although 181 is nonbinding, it could be viewed as consent for the Jews to be sovereign over the parts laid out in the Partition Plan. The next year, on May 11, Israel was admitted to the UN. While it's is unclear if the UN recognized Israel's right to the land is captured outside of the partition plan's boundaries, it certainly consented to Israel's right to some of the land. At the very least there was implicit consent over Israel's right to control a part of the land.

Ah, but Frumteens argues, who cares about consent? The whole issue is that the Jews cannot "ascend like a wall", meaning they can only become sovereign if they take Palestine peacefully and unopposed. Since that clearly did not happen (witness all the riots, intifadas, and of course wars), the Jews still violated the Oaths. Consent of the world means nothing because

[t]here was a war - the war of '48, where 6,0000 Jews were killed. The Arabs, who were living in and around the land, did not give the Jews any permission to take it. Other countries did, and there is no such halachic status that the UN is like some kind of Sanhedrin Hagadol that can bind other nations to its decisions (any Zionist can tell you that). In any case, there is no comparison to a Coresh or any other "peaceful ascent", since - hello!! - in order to create the State of Israel they had to fight a bloody war with the Arabs!!!. So why in the world is that called a "peaceful ascent"?

Frumteens' argument has no basis in Halacha, law, or politics. Put simply (and correct me if I'm wrong) Halacha considers the sovereign the person in charge, not the people who lived in the area. For the most part international law in 1922 (and probably in 1947) did not recognize it either. The concept of self-determination was nascent and not a norm of international law.

It seems unlikely that the Oaths denied the Jews the right to defend territory already granted to them by the sovereign. If one wanted to take over Israel when the Romans controlled it, he'd have to face the Roman army, not the people. The people simply had no legal existence as sovereigns and are not relevant to the discussion.

As a matter of law and Halacha, the sovereign was the League or the UN until 1948. Those bodies consented to Jewish sovereignty. The response by the inhabitants is conceptually no different than if 50 years later Brazilian citizens came to Israel and attacked. Once consent was granted, Israel could be created. The response of the natives was aggression and Halacha and international law recognizes the Jews right to respond in self-defense. In other words, we are dealing with two distinct time frames: 1) the sovereign (king in the parlance of the Maharsha) grants the Jews the right to build the state and 2) the inhabitants attack. The Oath was already suspended by the time the Arabs attacked and that attack is halachically irrelevant to mitigate the suspension.

Getting back to my earlier point, consent sufficed to allow Israel to capture a degree of land (up to the 1949 borders). Did that consent extend to the West Bank and Gaza? I doubt it. Although one can argue that the Mandate still applies today because no country has been (legally) sovereign in those areas since 1949, that argument ignores the ascent of the norm of self-determination as a bedrock principle in international law. The people who live there are relevant and certainly have NOT consented to Israel taking over the West Bank and Gaza.

It would seem therefore that the Oaths currently do apply in those areas since Israel lacks the consent of the sovereign (who are the people), and concurrently the obligation to conquer the land is suspended. However at the very least some of the land they controlled in 1949 was captured in accordance with the Ramban's position and Israel would be obligated to fight to retain it. How much of that land depends on what type of consent was obtained and over how much territory. The rest of the land Israel controls it can retain because the land is necessary to defend the country from its enemies even if an active fight for the land is prohibited. Israel can keep the land for instrumentalist reasons: as a corollary of the requirement to defend Jews from their enemies, which the Rambam brings down as a basis for a milchemet mitzvah.

I'd appreciate comments from both a halachic and legal perspective.

World Trade Center: A Movie Worth Seeing

A few night ago I went to see WTC. A harrowing movie on par with (although not as good as) United 93, the movie was the story of the last two rescue workers removed from the rubble. It featured the head of a Transit Authority unit and one of his patrolman who were about to enter Tower 2 before it collapsed, but never made it and instead were buried for almost a day.

The movie intersperses their plight with how their families react while they wait, and wait, and wait. I can't imagine what it must have been like to know they went into the towers and then not hear from them. Hope and faith were their only options.

My biggest quibble is that the stories of the these two men are limited in nature. We never saw any planes crash or even the buildings collapse (although we definitely heard them). We did hear constant crashes and explosions while they were about to go into the building, which was most likely people landing on Tower 5. But we never got to experience the complete package (the people jumping, the planes crashing, the people fleeing, the buildings collapsing, etc.). While we've all seen these scenes before, I'd love to have seen how the people at the time reacted to them.

There is also the story of a former marine who decides to just leave his accounting job, put on his uniform and head down to Ground Zero to save people. We meet another marine (who in a mistake that cannot be attributed to Stone was white in the movie but is black) who just happened to be there searching. We also meet a former medic who spent years in rehab, but that day just decided to do whatever he could to help. We have firemen begging to be allowed into the site to search, willing to bare the risks, simply because their friends were dying there.

These stories are the moral of the movie. The movie makes it clear: 9/11 showed us the evil man can perpetrate, but it also showed us the good. The selflessness, the altruism, and willingness to take risks for people they've never met, and in many cases when it wasn't even their duty to do so. That's the lesson we should take from movies like WTC.

Seems Like It's Over (For Now)

As of this morning, the fighting between Israel and Hizbollah ended. My thoughts:

1) The war was executed poorly, which is probably directly related to the fact neither Olmert or Peretz have any real military experience. Putting Peretz in charge of defense was probably the worst thing Olmert did when he took power. Coupled with Halutz's insistence to try air power (not surprising given his previous position as head of the air force) and the ground war was executed way too late. Israel had to know they'd only have a limited amount of time to execute their objectives and they waited way too long to go about them.

2) Only in the Arab world could a victory be the lack of total defeat. Going back to 73 when the Egyptians proclaimed victory because they weren't beaten in six days, it continued through the ntifada and until today Hizbollah when claimed a big victory. Come on, they spent the last month complaining how Israel was bombing them back to the stone age, and now they are claiming victory? How is the almost complete dessimation of the infrastructure of the southern part of your country consistent with victory?

Obviously Israel did win this war either. There is no way, given the current realities, that Israel could "defeat" Lebanon, but the objective was to destroy or seriously weaken Hizbollah. That didn't happen and hundreds of lives were lost and billions of shekels of damage was caused by the daily bombardment of Haifa and the north. Israel obviously came out on the better end in any objective metric, but the IDF needed to do more to ensure Hizbollah is no longer a great threat and that didn't happen.

3) I don't like Resolution 1701, but I basically agree with Barry Rubin that in theory it's not bad but won't be enforced because no one will dismantle or disarm Hizbollah. The whole hinges on which countries will constitute the new (and we hope improved) UNIFIL and whether those countries will do anything to stop the inevitable Hizbollah violations. If they can keep Hizbollah out of the south, that will minimize conflict and probably keep a very fragile ceasefire in place for a while. It's amazing that we can't get a resolution calling for someone relevant to disarm Hizbollah, but in practice who would carry that out? This whole situation sucks.

A Question On Land For Peace

Maybe Chardal, Bluke and the other experts on Zionism issues can help me here.

I don't understand why the majority of the religious Zionist world opposes land for peace (ideologically). Let's assume for a moment that it's a virtual certainty that withdrawing from parts of the Judea and Shomron would lead to saving more lives than remaining in the territories. In other words the aggregate number of lives would be increased if Israel withdraws from land. Why can't Israel withdraw?

From what I understand the prohibition stems from "lo techanaim," which prohibits, among other things, giving non-Jews a stronghold in the land. Now I see no reason why pekuach nefesh would not trump this negative commandment, as it trumps every other positive or negative commandment save idolatry, murder and sexual promiscuity.

When I was in YU Rav Herschel Schacter used to propose a different ground. The Minchat Chinuch poses a question: why doesn't pekuach nefesh supersede the obligation to go to war? He answers that the nature of war is that lives are put at risk and therefore the obligation to go to war is greater than "v'cahi bahem." Therefore Rav Schacter argued that Israel must fight a war and assume causalities and can only cede land if they feel they won't win the war (in other words if the casualty rate is too high). That question is decided by the experts although regarding the disengagement question he argued that the decision should be made by believing Jews as a substitute for the Sanhedrin.

If I remember correctly, Chardal in the past argued that he'd only allow surrender of territory if the existence of the klal was at stake (like R' Yochanan). But what is the reasoning behind this position?

I think one could fairly argue that most of Israel's wars were in the category of milchemet mitzva. The Rambam lists the wars which fall under the category in Hilchot Melachim (5:1)

ואיזו היא מלחמת מצוה--זו מלחמת שבעה עממים, ומלחמת עמלק, ועזרת ישראל מצר שבא עליהם

Nowhere is there a mention of fighting a war to keep the land of Israel. In fact the Rambam does not even list the mitzvah of Yishuv Eretz Yisroel in his Sefer Hamitzvot (I know there are arguments to explain the seeming contradiction between his statements in Hilchot Melachim and his omission in the Sefer Hamizvot). The communal mitzvah to capture the land is well-supported by Ramban, but even if we construe that commandment into a support for a milchemet mitzvah, the Ramban himself requires consulting the Urim Vetumim prior to embarking on a milchemet mitzvah (he claims Yehushua was required to ask before capturing Eretz Yisroel). Since today we lack the Urim Vetumim, any war to capture the land would be prohibited.

However, it is clear that defending Israel from its enemies is a milchemet mitzvah that even the Ramban would not require permission from the Urim Vetumim. Rabbi J. David Bleich in the third volume of Contemporary Halachic Problems mentions that the Gemara in Eruvin 45a allows defending border towns in Israel even on Shabbos. He argues that since at the time of the Gemara, Israel had no access to the Urim Vetumim, clearly such a war could be undertaken without consulting it even according to the Ramban.

But even if the present wars fall in that category of milchemet mitzvah, those wars are not fought to defend land, but to save lives. If ceasing the war and ceding land would minimize causalities, wouldn't it be counterproductive to fight the war? The only reason we can fight the war is to save lives, but not fighting the war would save more lives. So how could we fight the war to protect the land?

Basically my question is if the only basis for a milchemet mitzvah is saving lives, and not fighting the war (and ceding land) would save lives, why would it be prohibited to give up land under the war rationale?

As Funny As It Gets

Check out this video. It features pretty much everything that could go wrong on a sportscast, right down to the substitute sportscaster.

This one is pretty funny too, even if you can't understand anything.

Take A Second And Think About It

I've seen people acting absentmindedly and then, well, I saw this. I was in the car with Shifra this past Sunday and we pulled up next to this girl driving her car. We were stopped at a red light, and she was drinking a Sprite.

I look over and noticed that she's shaking the Sprite. Not just mildly, but shaking it like an orange juice. I turn to Shifra sand say, "hey, she's shaking her Sprite." Shifra says, "well I guess she doesn't like the carbonation."

Next thing we see she opens the Sprite and it gushes out all over her. Unbelievable. I mean come on, what could she possibly be thinking?