from milan to mumbai

how i spent my summer vacation

2009-07-16T09:29:00.003-04:00

Owing to the summer season and multiple deaths in our extended family, I've been involved in more small talk than usual lately. One of the questions that often comes up at my age is what are your kids doing for the summer, or (if they're out of college) what are they doing altogether? The answers are often ideologically inspiring and yet vaguely predictable. My daughter is in Central America building housing for the poor. My son works for an environmental group in New York. My daughter did volunteer work for Obama and is now doing Teach for America.

There's nothing bad about any of this, and a lot of it is downright admirable. But it's hard to avoid a few difficult questions.

First, who is supporting all of these people? While some live modestly, it's hard to believe that all of these middle class kids have suddenly given up restaurants, decent clothing, and health care. Either parents (directly or indirectly), or charitable donors (supported by tax deductions) are likely helping out: hardly a great evil, but difficult to sustain indefinitely.

Second, how much good can be accomplished by people armed at most with liberal arts degrees? When I did volunteer work--and talked to people who did more--the pressing need was always for specialists (doctors, engineers, speech therapists) who could help with the technical and (yes) boring problems that real people have in the real world. The fantasy of an idealistic Yale student teaching Third World women about health and birth control is an appealing one: but it usually remains a fantasy.

Third is a more philosophical problem: what happened to growing up? When I was in college I worked at Burger King, as a camp counselor, and as a clerk/typist at the Public Health Service. I wasn't very good at any of these jobs, and they did little or nothing for my resume. But I learned an awful lot about the real world: what is was like to have a job with low pay and few if any real legal rights; what sexual harassment was, although no one yet used the term; most important, that people who looked and sounded different from me, and had little or no formal education, could be much smarter and more effective than I was in real-world situations. I also learned the simple joy of earning part of one's own support and spending it, wisely or not, on the things that kids spend money on. It's possible, even likely, that people learn similar lessons on more idealistic jobs. But people who do homeless volunteer work don't actually become homeless, don't share the experience of the "other" in the informal, totally un-self conscious way I shared the experience of others at Burger King or the PHS. Instead they are there to "help" people: an honorable goal but one fraught with danger on so many levels.

I worry also where these kids will be in 10 or 15 years. I remember a lot of my own colleagues who said they would never work for law firms and devoted their 20s to various kinds of public interest work. After a few years--seeing the world more or less the same as it was when they started out--they decided they would "change the world from the inside" and started down the corporate path. So here are I am, thirty years later, teaching law school and with a spouse who works for a charitable foundation while they pile up money on Wall Street or what's left of it. I'm not saying this will happen to all of them or even that I will take much satisfaction if it does. But I think we are setting a lot of people up for a lot of disappointment that a dollop of realism, and a chance to be kids, might go a long way toward correcting.

sotomayor's testimony

2009-07-15T09:19:00.005-04:00

I lean against the nomination of Sonia Sotomayor, who I think is a decent but not especially outstanding judge who has been in the right place at the right time for most of her career. Since her nomination seems assured, however, I think her testimony is most interesting for what it says about the confirmation process and the likely future of the Supreme Court. For the liberals who support her, I don't think it is particularly encouraging on either count.

Sotomayor is most famous for saying that a "wise Latina woman" could use her experience to reach better or at least more balanced decisions than her white male counterparts, adding (I'm not sure if this is a direct quotation) that empathy as well as intellect was important to effective adjudication. Whatever one thinks of these statements, they are a succinct and accurate summary of the philosophy that inspired her selection and, indeed, of the liberal approach to the judicial process as it developed over the past half century. By backing away, slowly but surely, from these assertions, Sotomayor is implicitly conceding the moral high ground in this dispute and emboldening those who oppose these concepts altogether.

The defensive posture above also bodes poorly for the future of the Supreme Court. Perhaps this is all a matter of strategy and Justice Sotomayor will turn out to be a feisty defender of various liberal positions. But it seems at least as likely she will trim her sails in an effort to avoid characterization as a "diversity" justice, or at a minimum that she will lack the conviction (not to say votes) to slow down the court's increasingly assertive march to the right. Barring the untimely death or illness of one of the conservative justices, that march seems only likely to accelerate, and an opportunity to have provided a serious ideological challenge to it will have been lost.

israel three, palestinians invisible

2009-07-14T17:46:00.002-04:00

Controversy over a TV ad by Cellcom, an Israeli communications company, which seems to make light of the "separation fence" built by Israel on the West Bank. The ad shows a group of Israeli solders on patrol when an object flies over the fence in their direction. At first the soldiers are suspicious but relax when it bounces and turns out to be a soccer ball. Unsure what to do, they decide to kick it back over the fence . . . upon which it returns a second time, they relax further, and an impromptu high-altitude soccer game begins with the (unseen) Palestinians on the other side of the fence. "What do we all want?" asks the voiceover. "Some fun [keif], that's all," adding what appears to be an Arabic expression for emphasis. Israeli Arabs have complained that the ad makes light of the separation fence, while one blogger said it "breaks records in bad taste, even by Israeli standards."

I would have to agree that the ad is in questionable taste and should probably be withdrawn. But I see it as more sad than provocative. The ad seems to me not so much dismissive or hostile as hopelessly naive, expressing a belief that the humanity on both sides will break through despite the seeming hopelessness, and asymmetry, of the current situation. It is significant in that it captures perfectly the attitude of a certain sort of liberal Israeli who, while emotionally sympathetic to the Arabs, doesn't make any particular effort to learn about them or their actual situation and attitudes. It's a little bit like those old Coca Cola commercials bearing the tag line "I'd like to teach the world to sing": except by that point American racial attitudes were already in the process of softening. In the Middle East, they just seem to get harder.

exams, "merit," and the ricci case

2009-07-11T09:34:00.004-04:00

Interesting op-ed by Lani Guinier and Susan Sturm in today's NY Times, arguing that the promotion exam was flawed and the "merit" argument accordingly unconvincing in the case. I have always thought this the weakest part of the plaintiffs' argument: it seems odd to me that firefighters, especially veterans, should be evaluated by a written test, and the winners seem to have been better crammers rather than better performers. This, although I am principle opposed to affirmative action, and the case was appealing to me on ideological grounds.

The biggest problem with Guinier and Sturm's argument is one of consistency. Sure, it's foolish to evaluate firefighters by written exams: but isn't it equally foolish to evaluate college applicants in the same way? Didn't Guinier and Sturm get to teach at Harvard and Columbia, in part, because they did well on law school exams, which (like those in New Haven) reward memorization and are eminently crammable? The problem here is that we are sending a message that written exams are fine for determining entrance into the elite, but are irrelevant to working class people, especially if others (themselves drawn primarily from an elite pool) don't like the outcomes. Presumably Guinier and Sturm would agree with this, and prefer to reduce the reliance on exams at all levels: but until this happens it's going to be difficult to convince the Ricci plaintiffs that they don't have the right to cram their way to success like everyone else.

obama and iran

2009-07-10T16:49:00.002-04:00

With the repression in Iran at least temporarily successful and Russia effectively blocking meaningful sanctions the military option is returning slowly but surely to the table. At this point no one seriously believes that sanctions will work or that the Iranian Government, which is using alleged foreign interference as a justification for its internal crackdown, has any serious interest in negotiations. The real problem is that no one is quite sure which is worse: an attack that may or may not succeed or a nuclear Iran which may or may not fatally destabilize the Middle East. The difference in perspectives between the United States (which can afford to take some chances on this score) and Israel (which can't) is also significant here. My bet is still that Israel will take some kind of action, but it isn't clear when or how: as one wag put it, Iran has been five years from the bomb for twenty years now, and it's unclear when the game is actually up.

One interesting theory is that Iran may actually want Israel or the US (and preferably both) to attack it, as the only way to salvage a discredited regime. Thus, it could be argued, Obama is actually being rather shrewd keeping them guessing. In this respect, the alleged "misstatement" by Vice President Biden, who suggested the US might not hold Israel back only to be corrected later by Obama, may have been part of a deliberate misinformation campaign. (The mistake, if it was such, came in a taped interview, and presumably could have been corrected before the show was broadcast.) Time will tell; but time, from the Israeli perspective, is running out.

happy birthday america

2009-07-04T08:59:00.002-04:00

Snapshots of another July 4 weekend . . . a day early celebrating my mother's birthday (yes it's on the Fourth), first time in 50+ years without my Dad, everything else weirdly the same . . . killing time in an upscale Long Island shopping mall, which is filled with Italian stores but hasn't quite figured out the amenities, like offering shoppers a place to walk, sit down, or relieve themselves . . . today the joy of juggling two parades with the Jewish Sabbath, a convenient reminder that Jews will never be and perhaps shouldn't be perfectly integrated (although they fight about these things in Israel too) . . . the papers say the fireworks this year will be more environmentally constructive, or maybe just less destructive, than in previous years . . . the neighbors complain about street traffic on a street that gets, perhaps, three cars in an hour . . . the two of us alone in a house pleasant but almost too quiet with the kids at camp and everything shut down for a day

How is it that every country seems to have won its independence in the summer? A quick count shows the US (July 4), Canada (July 1), France (July 14), and India (August 15) among places that I've visited. Italy has two national holidays (June 2 and April 25) but late April is almost the summer there especially when one figures in the "bridge" to May 1 (May Day) which many take off altogether. Israel goes by the Jewish calendar so it's usually in May, sometimes very late April, but always hot. The only institution I can think of that has its biggest holiday in the winter is Christianity, but they're a religion not a country and Christmas falls in the summer in the southern hemisphere where, if current trends continue, most Christians will probably live eventually anyway. Maybe countries just pick the warmest of the available days, or maybe rebellions and revolutions, in the days before air conditioning, tended to happen when the weather was hot. Either way, enjoy it while it lasts.

are republicans more prone to extramarital affairs?

2009-06-28T12:43:00.003-04:00

The story of Gov. Mark Sanford's extramarital affair, coming shortly on the heels (so to speak) of similar disclosures by Sen. John Ensign of Nevada, has many observers buzzing about the alleged hypocrisy of conservative Republicans and (more playfully) asking what exactly was in the water at last year's GOP convention. The issue is hardly limited to Republicans--witness Bill Clinton, Eliot Spitzer, and almost anybody named Kennedy--but there do seem to be an awful lot of "family values" types falling by the wayside lately. Is it coincidence or is there a pattern here?

I can think of three possible reasons why Republican males might be more prone to such affairs than their Democratic counterparts, along with some reasons they might be less so. On the positive (or should I say negative) side:

1. More repressed, misogynistic, or simply unpopular men might choose to become Republicans; their early difficulties with women would then give rise to hostile, or at least childish, behavior later in life. The problem is that there is not much empirical evidence to support this: people tend to choose parties on the basis of ideology, inheritance, or simply convenience rather than personality types. It does seem likely that politicians in general are more repressed, childish, and narcissistic than the overall population, but that is a different question.

2. Even if they don't start out that way, Republicans--especially social conservatives--tend to exaggerate the virtues of marriage, family, and so forth: having set a standard that they cannot possibly live up to, they fall farther and deeper once the contradictions catch up to them. As I noted in a previous post, the Virgin Mary is a powerful symbol, but somewhat less fun to be married to, and men who idealize their wives and children are arguably more susceptible to the wily, "darker side" women of whom there no shortage in political life. The problem here is that Democrats play the family game no less than Republicans, and seem to be not much less prudish, at least in their official personae. The problem of human frailty is moreover hardly unheard of in religious circles, and one would expect certain support mechanisms to kick in and prevent the nearly universal fantasies about younger/wilier women from becoming reality. I think this is somewhat more persuasive than #1, but not very much so.

3. The percentage of liars, cheats, and adulterers is pretty evenly spread among Republicans, Democrats, and the Socialist Workers Party: it is simply more fun to catch a conservative, "family values" type in bed with another woman (or man) and therefore attracts significantly more media attention. I must confess that I have never quite understood the logic here: religions universally concede that people are sinful (that's why we have religions), and making "hypocrisy" rather than conduct the issue would allow any politician to inoculate themselves against criticism by simply announcing that they were a liar, cad, or degenerate in advance. (Something like this make actually have happened with Bill Clinton, although not early enough to prevent his impeachment.) But people are only human, and it's simply more fun to find out that (say) the latest Pope or Ayatollah has a girlfriend than yet another revelation about Clinton, Edwards, and so forth. The "man bites dog" aspect of the story thus proves irresistible to all but the most forgiving among us.

So I think there is not much to #1, a little bit to #2, but most of the story is #3: not a Republican but a political (or male) problem that is simply more fun to talk about it when people try to deny its existence. One could argue that this is a good reason to keep politics about things like budgets and foreign policy that politicians can actually change rather than about personal virtue which they are unlikely to. But neither party seem likely to do this anytime soon, so we are probably stuck with the pontificating and hypocrisy--from both sides of the aisle--for the foreseeable future.

tax scholarship: critical and meta-critical approaches

2009-06-26T15:52:00.004-04:00

I recently received a free copy of Critical Tax Theory: An Introduction, a collection edited by Profs. Anthony C. Infanti (Pittsburgh) and Bridget Crawford (Pace). The book, at 397 pages, is easily the most comprehensive work on the subject, even including a brief essay that I wrote a few years ago on Women, Poverty, and the Tax Code [perhaps that's why I got the free copy.] Ten, or is it twenty or thirty, years into the critical tax movement it provides an opportunity to take stock of what has and hasn't been accomplished.

The first thing that strikes a reader is the sheer volume and (for the most part) quality of what has been written. Along with race, gender, and sexual orientation, there are chapters on family tax, international tax, tax history, and even a chapter on the moderate/conservative response to the critical tax movement, appealingly labeled "critical perspectives on critical tax theory" (more on this later). All told, there were more than 50 articles, ranging from Grace Blumberg's now classic treatment of the taxation of working women (1971) to work completed in the past decade.

One is also struck by the diversity of approaches, which run the gamut from the application of traditional scholarly tools (fairness, simplicity, economic efficiency) in new topic areas--I am thinking here of work like Patricia Cain's on gay couples or Beverly Moran and William Whitford on taxation of African-Americans--to more offbeat approaches like that of Lisa Philipps on "discursive deficits" or Infanti himself on waging "guerilla warfare" within the tax system. But on the hold, the pieces are remarkably tame, perhaps confirming the suspicion that what is radical to tax lawyers is pretty much mainstream to everyone else. For example the Blumberg article, which leads off the collection, makes the pretty nonradical point that the combination of joint returns, nondeductibility of child care expenses, and other provisions tends to discourage wives and mothers from entering the labor force, a proposition that would seem hard to deny except that nobody had quite addressed it before. The articles on race, sexual orientation, and other hot button issues tend likewise to be rather more adventurous in their subject matter than in their methodology.

I suspect that this squares-masquerading-as-radicals feeling--a little bit like a rap group playing a college fraternity--results from the training of tax lawyers rather than any inherent aversion to more creative approaches. Tax professors are, put simply, more comfortable with economics than with culture, and even then with a very particular type of economics that has become traditional in the field. When noneconomic arguments are made about (say) the tax treatment of marriage or the need to encourage home ownership, there is a tendency to dismiss these as "rhetoric"--a neutral but essentially condescending term--and then return to the economic, or pseudo-economic, analysis that one was previously engaged in. This has always been true of old-fashioned tax professors, but it is interesting to see more critical or left-leaning scholars falling into largely the same pattern.

In this context the final chapter, which discusses the criticisms (so to speak) of critical tax work, is especially interesting. Particularly provocative is the final piece in the collection, by Amy Wax, which suggests that the pretax world may discourage women from becoming homemakers and that additional subsidies for "working" women may thus exacerbate rather than counteract preexisting inequities. Or, to put the matter differently, tax provisions that encourage women (or men) to stay home with their children may reflect an economically dubious, but culturally sophisticated, intuition that traditional family structures are in need of protection, a protection which economically "rational" reforms may strip away.

In the context of Infanti and Crawford's book, this insight appears almost as an afterthought: but what if it is actually the real point? What if the seemingly irrational tax subsidies for marriage, home ownership, domestic oil and gas production, and so on are not so irrational after all, but reflect nonquantifiable but nonetheless powerful intuitions that certain forms of behavior are more beneficial to civilized society than others? (Try to find a study that doesn't conclude that children born to married couples do better than those living in single-parent households.) What, that is, if the real critical scholars are the ones who make the intellectually difficult but vital case in favor of these culturally based provisions, and the self-styled crits--nearly all of whom are trained in traditional tax methodologies and remain highly suspicious of cultural arguments--are the real reactionaries? Something to think about.

the iranian election part iii

2009-06-25T18:25:00.002-04:00

As all the world knows, nonlethal has turned to lethal violence in Iran and a stolen "election" looks increasingly like an incipient coup d'etat by the right wing (Ahmadi-Nejad/Khameini) forces. Whatever one thinks of the US response--I think it's generally been a day late and a dollar short--things look grim for the Good Guys in the short run. But it pays to take a somewhat longer view.

There are always at least two stages in a regime's collapse. The first is when its ideology is discredited in the eyes of everyone except (or sometimes even including) the regime itself. This is also the stage at which the regime ceases to be a model for thinking people located outside the country. That is, more or less, where Iran is today.

The second is the actual physical collapse of the regime. How long this takes depends on the internal cohesion and ruthlessness of the regime, and to some degree on outside forces. In the Soviet Union this took less than a decade, although rather longer if measured against the entire Soviet Bloc, where the failures of the system were visible much earlier. In South Africa it took several decades. China has gone twenty years since Tian An Men with communism effectively dead as an ideology but the system clinging to life based on a combination of repression, economic growth, and a claim (however improbable) to have inherited the authority of the former Chinese emperors.

The bottom line is that a system which loses its underlying legitimacy may take a long time to collapse, but it always will, and it is generally speaking better to be ahead of the curve than behind it. That doesn't mean that one should ignore the country completely in the interim, or that outside intervention will necessarily make a positive (or any) difference. But one should be clear which side one is on, as the people of Iran have done this past week, and as the rest of the world--with infinitely less at stake--has an obligation to do, as well.

u.s. soccer team beats spain

2009-06-24T17:34:00.002-04:00

I missed the second half because I decided to try penalty kicks against my 14-year old and broke his retainer (he's leaving for camp tomorrow). But that didn't do much to diminish the U.S. team's accomplishment in beating Spain, the world's top-ranked team, in the Confederations Cup held in South Africa this week. The Confederations Cup isn't the World Cup, and soccer doesn't get the attention here that it does everywhere else in the world, and of course we haven't had a war against Spain since 1898: all reasons this will probably get less attention than (say) the hockey win over the Soviet Union in 1980, or Shakira's newest outfit. On the scale of improbability, though, it probably ranks even higher: a moment of justified pride for a team, and a sport, that have taken their collective lumps.

I've written before about soccer, and the difficulties it has in attracting a North American audience. Perhaps this victory, and a strong performance in the 2010 World Cup, will help to turn it around. The U.S. plays the winner of tomorrow's Brazil-South Africa match in Sunday's final.

the iranian election part ii

2009-06-20T15:41:00.002-04:00

The increasingly obvious fraud in the Iranian election, and the incipient use of force (albeit mostly nonlethal) against protesters, mark a point of no return in the situation. As Fareed Zakaria wrote in a fine post today, the regime may well survive, but its ideology--the notion of divine sanction combined with broad popular support dating from the 1979 revolution--is pretty much dead. In this sense, although not in the level of violence, the crisis resembles Tiananmen Square 1989, when the Government retained political authority but Chinese communism as an ideology disintegrated.

The implications for US policy will take time to sort out. Commentators like Roger Cohen of the NY Times, who admits he understated the evils of the Iranian regime (but asks others to admit they underrated the Iranian people), deserve great credit. The Obama Administration, I think, deserves somewhat less. While keeping a judicious silence is perhaps a wise strategy, at times the Administration seemed almost to want the who affair to go away, as if its policy of "engagement" with Iran was more important than any particular change in that country.

In reality, as Cohen and Zakaria's comments suggest, events have already passed Obama by. The issue now, as in 1979, is not engagement vs. confrontation but how to adjust to a new reality in Iran, in which the old alternatives are fast becoming irrelevant. In remaining a step or two behind the action and appearing indifferent to a popular uprising--one which he may have helped to inspire--the President has made a slow start. Here's hoping that he will prove wiser in the long run, and put U.S. policy on the side of history rather than on the sidelines.

the iranian election

2009-06-14T12:12:00.004-04:00

There are two interpretations of Ahmadi-Nejad's "surprising" landslide victory: (1) he cheated, (2) Western reporters have, a la Tien An Men Square, been talking too much to urban liberals and not enough to rural conservatives to know what's actually happening. Early indications suggest an element of both. Either way, it is a major setback for Obama's process of engagement with Teheran, which looks increasingly like a one way street, and not in our direction.

bob livingston 1919-2009: an appreciation

2009-05-28T12:28:00.007-04:00

My father, Bob Livingston, died last week at aged 90 in our family home in Long Beach, NY. It was a good life and as they go a relatively easy death, which among other things gave us some time to reflect on his life and contribution. While members of my family differ in religious observance, politics, and just about everything else, we came together very nicely for the funeral and shiva, the seven initial days of mourning in Jewish tradition, from which I recently returned to Philadelphia.

At the funeral, I offered a brief appreciation of my father, a version of which appears below. It may be interesting to general readers for its discussion of his generation and its place in American (and Jewish) history. For those who knew him, of course, it will be that much more pertinent:

"We are here today to celebrate a long life and a good life. Surely the length is not in dispute. Bob Livingston lived 90 years, having produced two children, four grandchildren, and by my account seen 17 different presidents, some of whom he even liked. To give you an idea how long this is, if my father had lived backwards instead of forwards, we would now by celebrating the inauguration of Andrew Jackson, and people would be getting excited about the new railroads that were replacing canals as the principal means of safe transportation. (There is no truth to the rumor that my father met Andrew Jackson, although he appears to have met at least one of Generals Patton, Bradley, and Eisenhower, depending upon the audience.)

My father was part of a generation--the children or (on his father's side) grandchildren of immigrants--who lived to see changes that were satisfying but also baffling to them. At times, he must have felt caught between his parents' and children's worlds and the varying, contradictory demands they made upon him.

A Biblical analogy may help here. The book of Be'reishit (Genesis) tells of three patriarchs, Abraham, Isaac, and Jacob. The role of the first and third is obvious. Abraham was the first Jew, the forerunner of monotheism, courageous enough to smash his father's idols and virile enough to father a child in his (not to mention his wife's) old age. Jacob became Israel, giving his name to the people and fathering what became the Twelve Tribes.

Caught in the middle, so to speak, Isaac had a more ambiguous role. In his youth, his father tried to kill him, albeit (or so we are told) for the best of reasons. In his old age, his wife and children played tricks on him. Sure, he invented Mincha [the afternoon service], but even that's the shortest and most frequently missed of the three.

Yet Isaac also did some things that the others didn't do. For one thing, the Bible tells us that he loved his wife, Rebekah, something it never quite says about Abraham. (It is best to leave Jacob's family out of it, altogether.) For another, he appears to have been rather cleverer than given credit for: at the Akedah, or binding, he asks his father why there is no animal to sacrifice, and notices that Esau has Jacob's voice on his deathbed. Isaac, in short, was less domineering than his parents or children, but appears to have been a good bit more likable, and to have provided the decency and continuity than enabled the whole enterprise to go forward in a period of radical change.

I think about this a lot when I think of my dad's generation and the pressures they endured. As children, they were expected to sit quietly before their elders, when they were allowed to be present at all. (My father and his sisters were sometimes called on to perform for the company after dinner ended.) In their old age--in late twentieth and early twenty-first century America--it was simply taken for granted that children were smarter than their parents, and the grandchildren were smartest of all.

In their youth, it was taken for granted that women--not to mention minorities--lived in separate if not actively inferior worlds. On several occasions my father related how his sister Sylvia, who attended Columbia Law School, would enter a room and the men would immediately interrupt their conversation--a conversation which, ironically enough, concerned gender issues. Who, he would ask, is more qualified than her to participate? Today we simply assume that women can be politicians, Supreme Court justices, and anything else that they want to be, and a Black man is our most popular President in a generation.

In their youth, men were supposed to keep their feelings to themselves and not discuss their emotions publicly. Now many discuss little else.

Like Isaac in the Bible, my father and the other men of his generation could at times be overwhelmed or simply confused by these changes. But when the chips were done, he and they came through.

Perhaps my father's best known contribution--surely the one that required most adjustment from his parent's world--was his work with Alcoholics Anonymous (AA), which spanned the last 35 years of his life, especially after he retired from Merrill Lynch [yes, that Merrill Lynch] in about 1980. As most of you know, my dad had what today would be called a substance abuse issue, which he confronted directly and forcefully, never taking a drink after 1975. That alone would have been impressive enough. But he didn't stop there, becoming an active speaker and sponsor who took the message of hope/renewal to others, most of them younger and many far less educated than he was, and some of them in considerably worse personal or professional shape. During my visits to Long Beach the phone would frequently ring with someone needing help or just somebody to talk to. He would rarely say no. In his last years, when I called to see how he was, he would often say "I'm going to a meeting" before I had a chance to ask.

That was his public side, but there was a quiet decency he expressed in private, also. In the Second World War he served as an officer in the Quartermaster Corps, affectionately known as the Jewish infantry, getting closer to the front lines than intended in the Battle of the Bulge. He spoke with pride but also humility about it, never glorifying war or denying that there had been excesses--even atrocities--on the part of American as well as German troops in the battle. He was proud of his Jewish heritage, could lead te'filot (prayers) in Hebrew, but never showed off about it or tried to impose his views on others in the family. Even in trivial matters he was kinder than most. Once, when I was visiting Merrill Lynch, a customer of another broker called asking for stock quotations [no Internet in those faroff days.] "Tell him to go __ himself," offered one colleague. "Tell him to call his own broker," said another. My father gave him the quotations.

I don't like hagiography, and I don't think that my father was perfect. Surely he was not the most patient person in the world. Many were the times we sat down for a big game only to see him get up angrily after the first setback, utter one of his trademark expressions of disgust ("Can't stop them," "They're killing them," etc.), and go off to do something else. Like many men of his generation he spent long hours away from home. Probably we got to know him better as an old man than as a young one.

Yet what stays with one most is not these moments, but the moments of decency, of support, of continuity, the sense that someone was there who cared about something besides themselves and was willing to do something about it. Such was the fate, I think, of not just one but millions of Bob Livingstons, if not the Greatest than certainly the most persistent generation of men that our country, and my people, have created. They were not as domineering as their parents and never quite as self-fulfilled or -expressed as their children. All they did was to win the war, do their best to create a lasting peace, and leave the world a little bit better than they found it. Sometimes, that's more than enough. Thanks Dad. We'll miss you."

sonia sotomayor

2009-05-26T10:35:00.004-04:00

I think it's a respectable but underwhelming choice. It will make the court more diverse and add somewhat more practical experience, but I don't think it does much to balance the conservative intellectual dominance on the court, or to raise the level of the court overall. It's also disappointing that Obama seems to have pretty well limited the list to one gender and perhaps even narrower--there's little question the court will eventually be gender-balanced, but a lot of question whether it will command national respect or continue to function as a sort of higher political forum. On the other hand some of the same things were probably said when Cardozo (arguably the first Hispanic) or Brandeis were picked so who knows? Right now it seems more safe than inspired.

Addendum: Sotomayor apparently has diabetes, which doesn't change my opinion but makes me identify with her a little bit more.

Second addendum: My opinion is still unchanged, but I think the attacks on her for being on the Board of the Puerto Rican Legal Defense Fund, or saying Hispanic women make better judges, are somewhat silly. Once you have a judicial record, the decision should be based on that record and your answers to the committee's questions. That's all that matters.

love, hate, death

2009-05-08T12:20:00.003-04:00

The NY Times ran a feature today on the killing of Johanna Justin-Jinich, a student at Wesleyan University who appears to have been murdered by a 29 year-old man who stalked her after they met at an NYU summer course two years ago. The shooter fired seven point-blank shots at a bookstore cafe where Johanna worked, suggesting it had been planned carefully in advance. The alleged killer is described as "apparently disturbed, a man with shaky relationships and a malevolence toward Jews;" the story further indicates that he directed 38 harassing e-mails and numerous telephone calls at his eventual victim, which were reported to New York City police but not further pursued.

One obvious question is why somebody who hated Jews would become obsessed with a young Jewish woman to the point of following her to Connecticut and then killing her. (Ms. Justin-Jinich is described as Jewish by descent although not religiously inclined; it is possible the three "J's" in her name accentuated her Jewishness.) The story thus raises once again the bizarre interplay between racial/religious hatred and sexual attraction, an issue many would prefer not to discuss but which is hard to avoid on facts like these.

In his book "The War of the World," the Harvard historian Niall Ferguson raises a provocative question: why was the Holocaust conceived and executed at precisely the point in time when intermarriage between Jews and Gentiles was on the rise in Germany and nearby countries? Why, for that matter, did Japanese soldiers rape thousands of Chinese women in Nanjing, at precisely the time Japanese propagandists were proclaiming the inferiority of the Chinese race? The traditional approach to such incidents is to assume that they are really about power rather than sex (much less love), with the sexual gratification, such as it is, of secondary importance. But what if the actual process begins with a fascination or even obsession with the other--an obsession which is by its nature forbidden and yet difficult to control--and only later leads the perpretrator to kill or humiliate the object of his illicit affections? (Ferguson notes, interestingly, that several high-ranking Nazis appear to have dated Jewish women in their youth, although apparently not Hitler himself.)

One can see why people would avoid such questions, which are embarassing to all concerned, and carry the risk of eroticizing unspeakable horrors. Yet the role of historians is to understand and explain the past, not to sanitize it. At times this may require recognizing the less pleasant side of emotions, including love and sexual desire, in other people. And in ourselves.

Italy good and bad

2009-05-04T17:15:00.003-04:00

Two news items in the course of twenty-four hours capture almost perfectly the contradictions that characterize modern Italy, and make the country so frustrating for people who follow it closely.

The first item concerns FIAT which--fresh from its acquisition of a stake in Chrysler--is currently trying to buy Opel, GM's European subsidiary, at what one suspects will be a bargain price. FIAT tends to be treated as something of a joke in the United States--it was said to stand for "Fix it again, Tony" when it used to sell cars here--but for many years it was the largest automaker outside of the U.S., Germany and Japan, and if things keep going this way it may be so again. A visit to the FIAT website finds snappy new models, environmental sensitivity, and a multilingual/multicultural approach--the kind of things Americans sometimes sneeze at but which are exactly what makes for success in a global economy.

The second concerns Prime Minister Silvio Berlusconi, whose wife is asking for a divorce based on assorted misbehavior by her husband, the most recent example involving his choice of a number of attractive younger women as candidates for the European Parliament. The affair was made even more lurid, if that's possible, by her statement that "I cannot stay with a person who keeps company with [frequenta] underage women"--an apparent reference to Berlusconi's attendance at the 18th birthday party of the daughter of an associate, of whom partially naked photographs have appeared in the Italian media. At current writing, Berlusconi looks likely to survive the affair politically; his reputation, such as it is, is another matter.

The historian Paul Ginsborg believes that the dominant theme of postwar Italian history is the successful development of the private sphere coupled with the failure to develop an equal sense of public commitment. The stories above capture, in an unusually stark way, the fullness of this contradiction. Italy is (depending whom you ask) between the sixth and eighth largest economy in the world, and in cultural terms it is probably in the top five. But until its public life matches its private accomplishments, there will be many who don't take it seriously, and that is unfortunate for all concerned.

the supreme court

2009-05-02T09:45:00.002-04:00

Barack Obama was an adjunct law professor at the University of Chicago and the editor-in-chief of the Harvard Law Review. His first Supreme Court appointment provides a rare opportunity to shake up an intellectually mediocre court and restore it to its previous grandeur. Unfortunately, there's little sign so far he'll do this.

The problem is Obama's inherent caution coupled with a strained reading of diversity, which has come to mean "otherwise conventional people who have some difference in physical appearance." Nearly all the picks suggested so far, from Elena Kagan to Sonia Sotamayor to Diana Wood and others, are in this category. None are bad picks, but none would do much to change the Court in an intellectual as opposed to a physical sense.

If Obama wants to give the Court a shot in the arm--or more likely, a kick in the pants--he has various options available. Any one of a number of legal scholars, from Cass Sunstein to Lawrence Lessig to Michael Dorf, would instantly raise the level of debate by several notches. If a woman or minority is desired, there are many available, from critical scholars like Derrick Bell or Catherine MacKinnon to conservatives like Mary Ann Glendon and a range of more conventional liberals (Stephen Carter, Randall Kennedy, and women too numerous to mention) in between. Elizabeth Warren, who is currently running the TARP fund, is among the nation's leading commercial law experts and would bring a sensitivity to class and social issues rarely seen on the present day Court. Nor is there any shortage of people with practical experience: what is Al Gore doing now, or for that matter, Bill Clinton?

If Obama really wants fireworks--and doesn't mind an older candidate--I have the perfect idea. He's 78 years old, attended Yale Law School, and has shown an intense interest in previous nominees. Appointing him to the Court is moreover the only practical way to eliminate him from the selection process. Does anyone know what Arlen Specter is doing these days?

obama, chrysler, fiat (part iii)

2009-04-30T15:37:00.002-04:00

I got a little closer to my new car when a deal was announced today, under which Chrysler will file for bankruptcy but FIAT will nonetheless commit to provide it with new technology and one or more new models in return for a stake in the company. For an outfit that sometimes gets laughed at, FIAT is pretty smart: the Italians got their stake without putting down a single dollar in cash.

Together with FIAT the deal demonstrates that Obama, whatever one thinks of his policies, is a lot smarter than his opponents give him credit for. As the NY Times reported, the increasing desperation of Chrysler, GM, etc. is bad news for their shareholders, but good news--albeit of a bittersweet type--for the automobile unions, which are currently acquiring a larger and larger financial interest in the (admittedly shrunken) companies. In other words, the Administration is using the auto crisis as an opportunity for a significant if forced experiment in worker ownership, a longtime goal of progressive politics in the U.S. and other countries. While the companies may fail, there is at least some chance they'll succeed, and become a model for similar arrangements in other sectors.

That's the good news. The bad news is that unions have a historical tendency to make advances in industries just as they start to decline, a history that FIAT knows something about. In his excellent history of postwar Italy, Paul Ginsborg notes how the Italian unions achieved unprecedented power following strikes at FIAT and other Turin-area employers in the 1970s, only to see FIAT (and indeed the entire Italian economy) hit hard times and gradually break the unions' power in the ensuing decades. In this case, of course, Chrysler would appear to have already bottomed out . . . but things can always get worse.

Well, if I can't get a FIAT, there's always a Toyota Prius, which at least sounds European. But the Times reported today that its workers are seeing hard times, as well. Does anyone have a used Volvo?

happy birthday israel

2009-04-28T20:48:00.002-04:00

Tomorrow, actually tonight, is the 61st Israel Independence Day (Yom Ha'atzmaut) on the Jewish calendar. Being only eight years younger than the state, I can remember any number of more significant anniversaries, ranging from 15, when my mother walked me to some kind of office in Manhattan to get a shirt pin; to 30, when I was in Israel, and the Likud Party ran ads playing on the presence of the letter Lamed (30 in Hebrew) in both Shalom (Peace) and the party's name; to 50, when the peace process had not quite completely fallen apart, and there was rather more hope for an agreement than there is today. Perhaps, come to think of it, it is nice to have an odd-numbered anniversary for a change, which one can enjoy without undue thought or reflection.

There's a lot to complain about in Israel, and most Israelis--even (or perhaps especially) the Jewish ones--do so quite regularly. Yet it is easy to lose sight of what has been accomplished. The country's growth--there is almost ten times the population there was in 1948--has been more rapid than China, India, or virtually any country on the globe. A nation whose economy was the butt of jokes is among the five leading high-tech centers in the world. Even on the issue of peace with the Arabs there has been--if not sufficient material process--at least a recognition of the problem and the first steps to resolve it. When I lived in Israel in the 1970s, it was common to deny the existence of the Palestinians, and a man named Yitzhak Rabin said the only place to meet the PLO was on the battlefield. Now Rabin is remembered as a martyr to the cause of peace, and even a conservative Prime Minister argues not about the necessity for resolving the problem but the best means to accomplish it.

The next few years will witness a lot of controversy about Israel, and that is not entirely a bad thing. But the existence of the state appears secure, and its problems--how to balance a modern state with religious traditions and how to protect itself without negating the rights of others--are, in the end, merely more intense versions of the problems faced by all nations. For 61 years, that isn't bad. Happy Birthday.

the inquisition and the inquest--part one

2009-04-24T14:07:00.005-04:00

President Obama's decision to release detailed information about Bush Administration interrogation policy (the so-called torture memos), while foregoing an investigation of the individuals and agencies involved, strikes me as a reasonable compromise. Nevertheless he is coming under increasing pressure to submit to an inquiry. Although this advice is well-intended, he should probably resist it, for the reasons stated below.

The argument for an inquisition into the inquisition (so to speak) is stated by Paul Krugman in today's N.Y. Times. Essentially Krugman argues that the U.S. needs to regains its moral balance and can only do so by completely and honestly confronting past abuses. This would be worth it, per Krugman, even if it diverted resources from other important goals, although he doubts that it would. There is also a suggestion, by Krugman and others, that a failure to confront the evil would allow it to happen again.

The problem with this argument is that it assumes a sort of idealized inquiry that is very unlikely to happen. If the goal is a kind of truth and reconciliation process, this has to a very large degree been accomplished by the release of the memos, although admittedly without the sort of contrition that accompanied the South African program (it's unclear whether this would be forthcoming, anyway). An ensuing inquiry is much more likely to turn into a highly partisan purge trial of Bush-era officials than a disinterested search for the truth. Some of the likely flavor of this inquiry is suggested by Krugman himself, who--after speaking loftily of the need to restore national conscience--refers to opponents of a probe as "people . . . who stand on the side of the torturers," adding helpfully that "[t]he president cannot lose their good will, because they never offered any."

A second problem is more practical. Supporters of an inquiry appear to assume that it will be a one-sided affair, in which the guilt of Bush, Cheney, and their advisors will be exposed and the country made better for it. But it is at least as likely the accused will counterattack, arguing (e.g.) that the interrogations saved American lives, and that the Obama Administration is effectively continuing or even escalating the existing war on terror. The spectre of studious legal scholars or lifetime CIA employees facing questioning by a bevy of self-interested lawyers or politicians--politicians who, among other things, are likely to know much less about the issues than the people they are questioning--might well produce more sympathy for the subjects of the investigation than its proponents. This is more or less what happened with the testimony of Oliver North in the 1980s, as brilliantly depicted by Sean Wilentz in his book on the Reagan era.

There is also the issue of action and reaction. Krugman and his ilk appear to assume that the liberal ascendancy will last forever. But that is highly unlikely. Much as Watergate eventually was repaid by the Clinton impeachment scandal, the effective criminalizing of policy differences is likely to provoke a similar reaction when and if Republicans are ascendant again. The present cycle of partisan, highly personal politics is thus likely to continue.

I don't think much of the Bush interrogation policies, and said so at the time. But interrogating the interrogators is unlikely to yield a positive benefit. What is needed is a substantive debate on the issue, a debate which the policitizing/personalizing of the problem will only detract from.

the us news ratings (a special report)

2009-04-23T13:02:00.004-04:00

I have at times taken a dismal view of law school ratings, US News in particular. However, I do not want it said they I lack enthusiasm for my own school. Therefore I wish to note with pride the following:

1. Rutgers-Camden is, according to the new survey, the leading law school in New Jersey. It is true Seton Hall is tied with us and comes below us only because "R" precedes "S" in the alphabet (Rutgers-Newark is a few paces back). But that is their own fault: there are plenty of saints with names beginning early in the alphabet; if they didn't choose one, are we really to blame?

2. Rutgers-Camden is, by my highly inexact calculation, one of the top five public law schools in the northeast, the others being Connecticut and the Pa. trio of Pitt, Temple, and Penn State, none of whom are far ahead of us. Maryland was a slave state and hence does not qualify. Cornell charges $40,000 a year and is thus disqualified even if it is a land-grant institution.

3. Rutgers-Camden has the only faculty member who teaches tax, ran for Congress, and can translate a sentence from Hebrew to Italian [although Temple has one who can translate from Mandarin Chinese.]

I welcome comments suggesting other measures by which we, or I, are in the top ten (five, one) in the nation.

fiat dappertutto (fiat everywhere)

2009-04-23T12:56:00.002-04:00

The NY Times reports that FIAT, the Italian carmaker, may buy a controlling stake in Opel, the GM subsidiary based in Germany. The company is already in negotiations, with the blessing of the Obama Administration, to acquire a 20 percent share in Chrysler. I am still holding out until the first cinquecento (500) makes its way to an American auto dealer. Looks like I may not have to wait very long.

and if you liked me so far . . .

2009-04-18T19:23:00.003-04:00

At least one person must like my blog, because I've been invited to blog about Pennsylvania politics at a new site, www.pa2010.com, which is going online today. Even if you don't like me, take a look: the site promises to be at the forefront of political coverage in the Middle Atlantic region, and they'll be plenty of people who disagree with me. I'll (we'll) try to bring you the same irreverent but punchy commentary that characterizes this blog, with the difference that I'll be posting rather more often and with much more team support. My title, as befits a moderate in an increasingly partisan age: Purple in Pennsylvania.

another "elite" law school

2009-04-17T10:43:00.002-04:00

No sooner had I posted on "what's wrong with the law schools" than another elite institution has made its mark. The UC-Irvine School of Law, which opens its doors this year, has announced itself "the most selective law school in the nation" and been hailed as the next elite law school by a wide range of commentators. A trip to the law school's website reveals 15 "founding faculty" of whom I recognized the names of at most three, and one of them (Rachel Moran) mostly because I went to law school with her. The website further indicates that the school is unique because it combines "the best of traditional top-tier legal education with innovative thinking" [now there's a thought] and will provide "meaningful opportunities to work with real clients on real legal problems." Indeed the school is so attractive that entering students were willing to pay . . . nothing to attend it, the inaugural class receiving free tuition for all three years (UCLA costs $31, 000). I wish the new law school well, and I have no doubt it will eventually find its place in the "top tier" of the US News rankings, which at last count included 100 law schools. But if a new school can hire a dozen journeyman faculty, bribe people to attend it, and be hailed as an elite institution, what is left of the concept of excellence, and is there any point talking about it?

what's wrong with the law schools?

2009-04-15T15:44:00.007-04:00

The ongoing recession has provided the impetus for a new round of handwringing regarding the future of American law schools. Many have suggested that the prevailing model, under which tenured faculty are paid substantial sums to teach a relatively small number of courses and write increasingly esoteric books and articles, is no longer sustainable. A recent article by Pierre Schlag suggested that this would be no great loss, as most contemporary scholarship was, in his view, not very good, anyway.

Being something of a curmudgeon, I have learned to be wary of arguments of this type, which use a real or purported crisis to argue for something the author probably wanted to do, anyway. Yet it is hard to deny that there is a problem. At my law school, tenured full professors are paid an average of $150,000-plus to teach three or four courses a year, a figure which is further reduced (the courses, not the money) by frequent leaves, sabbaticals, and so forth. To support this largesse, the school has resorted to a bewildering array of adjuncts, visiting professors, and similar arrangements while considerably slowing down the pace of tenure-track hiring: essentially the law school equivalent of a law firm making fewer partners and leveraging its associates more aggressively. While many of these additional people make very fine teachers and colleagues, most of them don't contribute to the school's scholarly profile, so that, in the longer run, there is a tendency toward stagnation or even decline in intellectual levels. People who work at the Dean's sufferance are also less likely to raise unpleasant questions, so that faculty governance inevitably suffers as well. In short, the whole model of an independent, tenured faculty is slowly withering away, a process which the economic downturn--whether as genuine cause or convenient excuse--is likely to accelerate further.

My law school has, at least, maintained a commitment to serious scholarship, both rhetorically and in terms of financial support. I am less certain of this in the broader law school world. Reading the TaxProf and other blogs, I am continually depressed to see how much time is being spent by legal scholars on marginal or entirely nonscholarly activities. For example a significant number of professors appear to be occupied in the business of ranking each others' productivity, either by purportedly "objective" methods like SSRN downloads--the moral equivalent of reviewing books without reading them--or simply by informal gossip, a staple of several of the more popular blogs. There likewise appears to be a widening gap between the scholarship produced at "name" schools, which is increasingly theoretical/interdisciplinary in nature and often far removed from practical consequences, and that at other law schools, which (at least in the tax field) looks pretty much the same as it always has. None of this is necessarily fatal: but it's difficult to see universities, especially those that are taxpayer-funded, agree to pay ever-increasing sums to subsidize a field so unsure of its methodology that it relies on popularity contests to determine its pecking order, or (what may be worse) relies on other disciplines to provide it with intellectual ballast. Here again, there is a sense of a model that is beginning to exhaust itself, but with no clear indication of what its successor will be.

What might replace the existing system is anybody's guess. One possibility would be to continue requiring that professors add some value beyond their teaching, but to be more flexible as to what that something could be. For example, some professors might continue to do traditional, law review scholarship, while others would be required to do clinical work, law reform projects, or simply teach more (or more original courses) instead. In effect, this is happening now, but by the ruse of "off the books" hiring rather than as a matter of deliberate strategy. It is doubtful that there is really a need for more than (say) a hundred new tax articles per year: why then do we keep producing them?

Another strategy--not mutually exclusive with the above--is to start getting more serious about the qualifications for a scholarly career. A colleague of mine recently suggested that one reason law schools hire so many economics, philosophy, and other Ph. D's is that so few Americans do the J.S.D. or other advanced law degrees: hiring committees thus face the choice of someone with a nonlaw training or no scholarly background, at all. In Europe advanced law degrees are effectively required for a legal teaching career. Whatever their other failings, they ensure that law professors--like those in other academic fields--have thought about their subject matter and methodology before they begin teaching. Foreign law schools have learned much from the U.S.: might we learn something from them?