Saturday, March 31, 2007

My 100th post: Further thoughts on healing

This 100th post (since March 15) is contributed by Ray Purdy, and speaks to the prerequisites for a successful process of healing and conciliation.

My own (TWB) view, mirroring Ray's, is that such processes benefit from being carefully considered and planned by a skilled mediator or facilitator. A poorly considered or poorly led process can do more harm than good, reinforcing destructive preconceptions and entrenching differences, rather than reconciling them. Demands for "conciliation" mean little unless the parties have clarified their objectives and enter the process ready and willing to listen and to respect one another's fundamental humanity.

Now, back to Ray:

A couple of thoughts: This conflict has taken the form of 3 people feeling DEEPLY wounded/hurt/misunderstood. The suffering is great. The person accused of being the "wounder" feels forced into an embattled position of "I didn't do it!" The suffering is great. This is the ORIGINAL "FEELING" form of the conflict from which all else has flowed.

A win/lose situation will contribute to continued suffering on one side or the other OR both. A win/lose is guaranteed to perpetuate a trauma pattern at least unilaterally if not bilaterally. Real healing of both parties will occur only if each side feels an acknowledgement in some way by the OTHER SIDE DIRECTLY INVOLVED (as opposed to a third party acknowledgement, such as the public at large or the law school or the press).

If the goal of further interaction IS healing, a context of grudging respect for each side's humanity must develop despite the disagreements on behavior and words. Consciously committing to this goal would make it achievable. Continuing the current context of a battle for survival ON EITHER SIDE will inhibit resolution except in the form of a typical predator-prey relationship.

A conscious choice to choose the context IS available to the parties involved. What will be chosen ultimately remains to be seen.

My "American Idol" Posting

See my prior posting on Wisconsin sports. 'Nuff said.
Next topic.

I'm slowly getting there: Medieval helpdesk

My wife, a librarian with considerable technical competence, has been amused by my difficulties getting up to speed on the modest demands of running this blog. I'm not quite sure how much "edge" she intended in forwarding this video to me. I thought the rest of you might enjoy it (and I deserve a modicum of recognition for finally figuring out how to post it here.)

The Gonzales Watch: Dark Clouds Over the Potomac

Saturday's NYTimes editorial, Avoiding Secret Testimony, argues

Congress has a duty to get to the bottom of the firings and remove the dark cloud that hangs over the Justice Department.


Unfortunately, the name on that dark cloud, like so many overhanging the skies of our nation's capital, is President George W. Bush.

The Congressional process for clearing the air is called impeachment.

Celebrating cultural diversity--just not a diversity of views, please

I'm visiting friends at Yale. The March 30 Yale Daily News features a story on themes now familiar to my Madison colleagues. Here are excerpts:
Locals protest Vietnamese film, by Judy Wang, Staff Reporter

A Vietnamese Students Association film screening Wednesday evening was quickly disrupted by an angry protest led by local residents who opposed the film’s alleged pro-Communist tone.

Immediately after the screening of “Living in Fear,” more than a dozen audience members wearing U.S. military hats began waving South Vietnamese flags and verbally attacking the film’s director, Bui Thac Chuyen, for what they saw as a positive portrayal of Communism. The Yale Police Department was called to the scene... as a precautionary measure... Members of ViSA said the demonstration was an overreaction to the film.

The screening... was a part of CommUNITY Week, a student-led week of events designed to celebrate cultural diversity. “Living in Fear” takes place in 1975 and chronicles the life of a South Vietnamese man who served on side of the United States during the Vietnam War.

...Some of the protestors verbally attacked a Yale student when she tried to mitigate the tensions, Nguyen said.

ViSA President Cecilia Ong ’09 said the event organizers were sent an e-mail by the Harvard Vietnamese Association warning them about the controversial nature of the film, which received heavy criticism when it was screened at Harvard University a week ago. Ong said ViSA decided to show the film because organizers thought it would foster discussion of Vietnamese culture.

“I definitely understand how people might get really riled up about it, and they certainly have a right to be,” she said. “But the concerns and opinions they were trying to vocalize may have come off a bit more strongly than we would have liked.”

Vietnamese language and literature professor Quang Van, who teaches in the Southeast Asia Studies program that co-sponsored the event with ViSA, said he can understand the protestors’ “hard feelings and resentment” because he himself escaped Vietnam with his parents in 1975. Van said the group believed the director was spreading Communist propaganda because all media in Vietnam is controlled by the government.

Thursday, March 29, 2007

Just in time for Pesach: In case you were wondering

A little squib in the March 29 NYT World Briefing brings this news:
By REUTERS
The pro-marijuana Green Leaf Party has told followers that marijuana is not kosher for Passover and that those who observe the holiday’s dietary rules should take a break from it. It said products of the cannabis plant, including hemp seeds, had been grouped by rabbis with foods like beans that are off limits. But if cannabis is nonkosher for Passover, it said, “it is apparently kosher the rest of the year.”


So much for Pesachdik hash brownies, I guess. No elaboration on whether Sefardi custom differs from Ashkenazi on this urgent matter. I'll have to check with some of my 'Sixties friends on how this substance would be classified under evolving standards of "eco-kashrut". (Probably depends on whether it was organically grown?)

The Gonzales Watch: Prosecutors Assail Gonzales During Meeting--Some Parting Reflections

From The New York Times::

PLEASE READ THIS POSTING

The more we learn, the more sickening this all becomes.

I've long thought that the Republicans, and those who provide their enduring base of support, had a winning, if repulsive, ideological/political strategy. As the anti-tax, anti-government party, their incompetence and multiple failures running the government would bring discredit and contempt upon the very idea of government capacity to do good in the world. Their failures in government would redound to their ultimate, long-term ideological success, even if they took some short-term hits along the way. In brief, they would win for losing.

But is it just conceivable that there is a level of incompetence and official depravity that may finally wake up the slumbering masses to this cynical con game? After Katrina, after Iraq, after all the lies and coverups and political manoeuvres, will this gang of backroom plotters and losers and flunkies finally convince the electorate, such as it is, that we should have people who believe in the necessity of decent and honest and capable government, running the show?

Maybe we could even find some such people and bring them into politics.
(We did in 1974. Some are still around.)

Oh, the money part. Right.

It's early. I must still be dreaming.

Some parting words to reflect upon. Now I have to pack.

Living With Alzheimer’s Before a Window Closes

From The New York Times
A very personal and emotional topic for those living with it.
For discussion in a future post.

Wednesday, March 28, 2007

Going semi-dark

I will be doing some travelling over the coming week or so, and may not be able to look in on my blog quite so regularly. Please be patient if there is a substantial delay in moderating comments (now that some are coming in), and check back in after April 6. I trust the world will keep, although I'm not so sure about Mr. Gonzales and the stock market. Happy and meaningful holidays to those observing/celebrating.

The Gonzales Watch (somewhat half- heartedly): FBI agent told to keep quiet

From Yahoo! News::
WASHINGTON (Reuters) - An FBI agent was warned to keep quiet about the dismissal of a U.S. attorney after he told a newspaper her firing would hurt the agency's ongoing investigations and speculated politics was involved, a U.S. Senate panel heard on Tuesday.

FBI Director Robert Mueller defended the handling of the incident, saying: 'I do not believe it's appropriate for our special agents in charge to comment to the media on personnel decisions that are made by the Department of Justice.'

'I profoundly disagree,' replied Sen. Dianne Feinstein, a California Democrat, who told the panel of the warning to the agent. 'He (the agent) was simply saying that it would affect cases that were ongoing. And I think he's entitled to his opinion.'


Sounds kinda' like saying (with lots of brass beside you, and all around you) that you're following the advice of your generals, but ordering them to stay silent, but publicly visible and on display when they disagree. (Actually, it seems to come with military culture, without the need for potentially embarrassing direct orders. Very convenient.) All in the chain of command! Great PR for government work, when you can get it.

Nothing quite like a well-informed deliberative democracy in full flight. I wonder what that might look like?

Thanks to Truthout for helping me find this one. They need, and deserve, our support. And if more of us contributed, maybe they wouldn't have to beg quite so often.

The YouTube Defense: Human Rights Go Viral

(Link broken)
A nice Jurisprudence posting on today's Slate, by a law student and human rights worker at Harvard. An excerpt:
As America's civil rights advocates knew well a half-century ago, lawyers are most successful when their legal arguments are attuned to broader social changes. When the NAACP went to court to end segregation in the South, it coordinated with groups staging sit-ins, knowing that the resulting public unrest would help shape Thurgood Marshall's legal victories in the courtroom. This strategy works because, right or wrong, judges keep an eye on the street. Internal notes from the Supreme Court's deliberations in Brown v. Board of Education suggest the justices spent less time discussing law than chewing over the state of race relations in the South. In fact, as law professor Michael Klarman points out, little relevant constitutional law had changed between Brown's ruling against segregation and Plessy v. Ferguson, the case that helped establish the "separate but equal" school regime. What had changed was the social context.

They teach stuff like that at Harvard? What happened with Scalia--did he miss that class?

Saudi King Condemns U.S. Occupation of Iraq

From The New York Times
After all, what are friends for?
What's next, a condemnation from Kuwait?

Actually, most everyone I know well (myself included) condemns the U.S. occupation of Iraq. That, and another election, may eventually get us somewhere (else?).

Meanwhile, maybe the Saudi King could turn his attention to influencing Sunni political and clerical leaders in Iraq to work out a less catastrophic resolution to that fiasco. And finally shut down Saudi money continuing to go to supporting training grounds for radical Islamists. And provide robust support for more moderate and pluralistic streams of thought that have flourished in past eras of Arab and Islamic history, and that contributed so much to (indeed, was critical to preserving) world civilization in a down time for the West. (I'm a particular fan of convivencia in Spain.)

This story also discusses the Arab League proposal on Israel/Palestine. I may have more to say later on this--it is likely to be much in the news in coming days. But briefly: If the Arabs were willing to adopt a more conciliatory--and more realistic--provision for resettlement and compensation of those displaced by events surrounding the creation of Israel in 1948 and the years following (note that this formulation includes displaced Jews as well as displaced Arabs), this could be the basis for a historic breakthrough. Otherwise, it is destined to be yet another in the long series of lost opportunities for peace.

It is time for another Sadat. As Dan Rather liked to say, Courage! I think Israel would be ready to respond. Is someone (say, the Saudi King?) ready to step up?

NOTE:SOME LIVELY DISCUSSION UNDERWAY--SEE COMMENTS!

This is long enough to move here from my response to a comment:
Thanks to lal for his/her comments.

There was significant discussion on a "one state" solution among Jewish intellectuals in 1930s Palestine. The group was known as Brit Shalom, I believe, and included such heavyweights as Martin Buber and Judah Magnes, President of The Hebrew University. I've wondered from time to time whether I would have supported that position had I been around in that time and place, without knowing the future. As best I know, that discussion did not survive the events of the Holocaust.

I agree with lal that whatever might have been, or might be in some distant, post-national future (if we survive that long), a "one state" solution (presuming a democratic government) is not a viable goal in present historic circumstances, and distracts thinking and energies from what I hope is a more realistic, if ever receding goal: two democratic societies, each pursuing its own distinctive national culture and identity, living in a tolerable approximation of peace and with some cooperative economic relationships with the other, and with neighboring states. A nice thought with Passover coming.

I think both polities and their respective leaderships bear a share of responsibility for the failure to bring this to reality. The assassination of Yitzhak Rabin by a Jewish extremist cost us all the most promising possibility. Inept political leadership by his well meaning successor, Shimon Peres, and the turning back from the pursuit of peace by Likud, ended that moment of potential promise. Arguably more consequential was the colossal failure of Yasir Arafat to capitalize on the possibilities offered by Camp David and Taba in the waning moments of the Clinton Administration (and, with a greater causal relationship, of the Barak Administration in Israel). That was the moment of greatest possibility; what has the second intifada achieved for anyone? Is it likely that the Israelis will ever agree to more than was offered at Taba (and refined in the Geneva Accords)?

I think the Israelis are, at this point, sick of the conflict, frankly sick of the Palestinians, and devoid of optimism or idealism about any constructive future together. I think they, even with --and maybe because of-- their current weak (and scandal-ridden) government, might pay a substantial price (including territory, but not a substantial population inflow under a Palestinian "right of return") to end the conflict, and pursue a better (and largely separate) life for their people. Less a "peace of the brave" than a "peace of the exhausted."

(Yes, I largely agree with Tom Friedman's recent column in The Times. I have always thought better of his columns on Israeli-Arab issues--his original reporting focus and area of expertise--than on most other issues, including Iraq and Globalization.)

Zimbabwe’s Opposition Leader Is Seized

From The New York Times:
[Robert] Mugabe, 83, who has vowed to crush opposition to his rule, was to attend an emergency meeting of Southern African leaders in Tanzania on Wednesday focusing on the political turmoil in his country.

Another triumph for democracy in Zimbabwe. Can't someone find Zimbabwe's once heroic resistance leader, grown corrupt and abusive with too much power for way too long (no racism intended--that's better than what I have to say about Bush), a really nice retirement villa, one way transportation included? Actually, speaking of Saudi Arabia, now that Idi Amin's retirement home is no longer occupied...
To seal the deal, maybe the great Forest Whitaker could be induced to do the movie bio? Or promise not to?

Note: Postings Moved

A number of postings on legal education originally posted on March 28, 2007 have been moved to the artificial date of August 28, 2007.

Tuesday, March 27, 2007

Note: Postings Moved

A number of postings on legal education originally posted on March 27, 2007 have been reposted under the artificial date of August 28, 2007.

Talking about Dying

Tough Question to Answer, Tough Answer to Hear - New York Times:

While I'm poking about in the Science Times archive, I came upon a particularly impressive piece, also on doctor patient communication, at the end of life. It was published shortly before I began this blog, and I'm happy to have recovered it for use here. I also plan to use this Jane Brody column in my future teaching. Here are some excerpts:

Patients use information about the expected course of their illness, including how long they are likely to survive, in a variety of ways. It can help them decide whether to take a long-awaited trip, which therapies are worth pursuing, what kind of support system they may need as their condition worsens, and how much time they will have to put their affairs in order.

Patients often have things they want to accomplish before they die, and knowing that their time is short may prompt them to attend to such matters. Receiving a terminal prognosis may also open up conversations about death and dying that may be painful at first but can bring considerable relief to patients and family members alike....

Prognosis is helpful, not just for patients, but also for their families, who may need to know, for instance, how much time they may have to take off from work, whether they should arrange for an extended leave, what might be involved in caring for a dying person at home and whether other arrangements should be explored. A common fear among doctors is that providing a terminal prognosis will strip patients of hope. Indeed, it will dash hopes of long-term survival. But the doctor can convey other sources of hope. For example, patients may be relieved to learn that they will remain well enough to attend an important family event, or that palliative care is available for distressing symptoms like pain, nausea and shortness of breath....

Most important, patients say, is for doctors to stay with them until the end. Fear of abandonment (some terminally ill patients are in fact abandoned by their doctors) is extremely common. Doctors see themselves as healers, trained to cure or ameliorate illness, and typically view the impending death of a patient as a personal failure. Rather than face failure, they abandon the patient.


I started thinking about these issues decades ago, in my classwork with Dr. Jay Katz at Yale Law School. His masterpiece on informed consent, The Silent World of Doctor and Patient, contains a powerful chapter on abandonment of dying patients, still well worth reading. Katz, a psychiatrist and training psychoanalyst, provides special insight into why physicians have so much difficulty coping with and remaining connected to their dying patients. He also makes brilliant use of Tolstoy's magnificent Death of Ivan Ilich to bring the point home.

My own father is now living in an assisted care facility, some years into Alzheimer's Disease. We just signed him up for supportive care with hospice. The issues have become more than theoretical in the life of our family.

Dropping Detachment and Reconnecting to Patients

Dropping Detachment and Reconnecting to Patients - New York Times:

Abigail Zuger discusses two works on the physician-patient relationship and the expeience of illness in today's Science Times:
At some point during training, medical students often unconsciously begin to think of their patients as alien beings, members of a weak, unlucky species of unrelated biped. It is a predictable, if regrettable, psychic defense mechanism in those first difficult years of immersion in human disability and death.

Fortunately, at some point in the decades after medical school, doctors often realize that they and their patients belong to the same species of unlucky biped, after all (beware the doctor who never figures this out). Sometimes it is an illness of the doctor’s own that does it or illness in the family or just a slow unclenching of the mind.

But once that epiphany dawns, doctors are never the same again; they look back on their harsh and distanced younger selves with disbelief and, if they are of an analytical bent, try to figure out what happened.

Two new midlife memoirs retrace this cycle of estrangement and reconnection.

I occasionally am able to break into our Med School curriculum to offer an elective on Caring for the Dying Patient. Somehow that is not high on our list of teaching priorities for future doctors. The following passage from Zuger's review particularly caught my eye:
Dr. [Pauline] Chen also provides some competent (and fully referenced) academic discussions on how the medical profession stumbles in teaching empathy to students, but the real power of her book lies in her stories. Balanced and perfect, each one seeks out the reader’s heart like a guided missile, and explodes.

Announcing a Change on Comments Policy (Experimental)

Well, I'm coming up on two weeks, the blog is starting to attract readers and some enthusiasm, I'm enjoying myself and thinking I may stay with this, and my announced policies on comments seem to have intimidated nearly everyone. (A majority of the existing "comments" are by me, and even I am thinking twice about submitting...)

On the advice of some fellow bloggers/mentors, I've made some technical changes facilitating comments and, on an experimental basis, am loosening up my prior criteria for posting. I'm staying with a moderated system, and I still (vastly) prefer signed to anonymous comments. Nonetheless, I will now consider posts with screen-names only, in the interest of trying to promote some discussion.

Of course, I reserve the right to make further changes, in either direction, as I gain more experience and see how the discussion goes. It is still very much my hope that comments will be well-considered, reasonably literate, and civil in tone. (I may make allowances for certain colleagues.)

Althouse: I love this new moderation!

Althouse: I love this new moderation!: "Saturday, December 30, 2006"

Some advice on posting to moderated lists by the divine Ms. A (from an old post on her site, not specific to me):
And here's some advice for avoiding having your comments rejected. Don't use bad language. (I don't mind it myself, but I'm worried about filters.) Don't be abusive. (I'm fine with people disagreeing with me, but if you just want to call me a moron, get your own blog. You can whine about censorship over there too.) Don't try to make the thread be all about you. Don't cut and paste long quotes. And don't bring up subjects that are completely unrelated to the post, unless it's funny or cool or aptly analogous or something else that I happen to appreciate.

And, while this is probably obvious by now, follow what I say, not what I do--TWB.

Bush Spokesman’s Cancer Returns and Spreads

Bush Spokesman’s Cancer Returns and Spreads - New York Times

Sadly, it's everywhere. Let's try to remember and work toward what is most important to each of us, and live life as if it matters. May we be worthy of our testaments, and our testaments of us.

Jewish moral superiority? A hard conversation...

An Ongoing Conversation » Minsk Morality

Here is a second recent posting from Leonard Fein's blog, on a difficult and hard-to-talk about topic in Jewish life.

The issue of what we expect — and of what we can realistically expect — of Israel by way of its performance gets more complicated all the time. In early Zionist doctrine, “normalcy” was the ideal, an end to the distortions imposed on the Jews by the discrimination they’d suffered in Europe. “Normalcy” took many specific forms, such as a return to the soil, an end to the “luftmentsh,” the “conquest of labor.” With statehood, there was an explicit focus on creating a “new Jew,” one healthy, self-reliant, civically engaged, freed of the diverse complexes of life in a largely punishing exile. (The critique of Jewish life in East Europe, and what it had done to the Jewish psyche, was often brutal.)

As to the intellectual and/or moral superiority of the Jews, instances of Jewish exceptionalism, my favorite articulation of what lay behind this comes from Max Weber, who wrote of “the theodicy of disprivelege.” How, Weber asked, do persecuted (i.e., “disprivileged”) people explain their circumstance? Why, by asserting their moral superiority to those who persecute them. The choice to persecute inherently establishes the moral superiority of the persecuted, and that sense of moral superiority becomes a critical consolation to the persecuted.

My strong impression is that many Jews, in Israel and outside it, and even after all these decades of evidence that the fact of being Jewish does not immunize one against humankind’s propensity for moral lapse, retain at least a residual (and often an active) sense of moral superiority.


To the extent any such sense does exist (I agree with Fein that it does), can it be utilized to energize more moral behavior, rather than special pleading?

Thinking critically, but lovingly, about Israel

An Ongoing Conversation » Young American Jews

Leonard Fein runs a thoughtful and courageous blog on matters Jewish and Israeli on the Americans for Peace Now website. I'll be running links to occasional postings there. Here's a recent posting on the challenges of involving the younger generation of American Jews in the highly frought issue of Israel. Fein has stayed true to progressive Jewish values, and seeks to apply them, with understanding and love, to some of the less pleasant realities of Israeli life and statecraft.

We here cannot wave a magic wand over Israel and transform it overnight into a Jewish Denmark. If we care about handing down a tradition of deep concern for Israel’s safety and welfare, it is in a different arena we need to operate. Specifically, we need to build on the important but still relatively modest fora for expression of what I will call here “progressive Zionism.” ...

No, PZ doesn’t answer the underlying question that gnaws at some young people: “Why should I care?” But it does answer the derivative question: “How shall I care about Israel in a way that is compatible with my concern for human rights, with my understanding of what the Jewish tradition teaches, with my abiding distaste for some of Israel’s more voluble American defenders, with my sense of personal integrity?

The Gonzales Watch: The Pause That Refreshes?

Maybe I'll take a day off on this. The guy is clearly on the way out, and I've decided I really don't like doing death watches. How much more can there be to say?
And after all, the guy is a toady and enabler, not the Main Problem. For that, look to the big white house down Pennsylvania Avenue.
Until the next outrage...

Conservative Responsa on Gay/Lesbian Issues

Contemporary Halakhah

The various Conservative responsa ("teshuvot")on gay/lesbian issues, as well as shorter and more accessible summaries, can be found and downloaded from this Rabbinical Assembly website. The principal responsum providing halachic authority for admitting gay and lesbian candidates for the rabbinate is the one by Rabbis Dorff (Provost of the University of Judaism in LA), Nevins (incoming Dean of the Rabbinical School at JTS-NY) and Reisner. (The principal opposition piece is by Rabbi Joel Roth.) There are several others, of varying degrees of interest.

For me, the most intellectually powerful and stimulating--I would even say stirring--of the proposals is that by Rabbi Gordon Tucker. (Disclosure: yet another classmate, friend, and teacher.) His approach, building in part on the jurisprudential thought of the late Robert Cover (my teacher at Yale Law School, and another of my hero-exemplars), will be of wide interest to jurisprudential and theological thinkers as well as to those focusing primarily on gay/lesbian issues.

In my admittedly biased view, Chancellor-elect Eisen and Rabbi Tucker provide a brilliant new generation of moral and intellectual leadership for the Conservative Movement and for American Judaism more generally.

I will be facilitating a reading and study group on these responsa at my local synagogue, Beth Israel Center, in Madison, WI beginning later this Spring. I hope to do some writing on the topic as well, some of which may appear, in abbreviated form, on this blog in months to come.

Secret yearnings of a new blogger

How Ze Frank became a Web video star. - By Michael Agger - Slate Magazine: "The growth of the Internet is fueled by yearning: What will happen when I put my thoughts online? Will people notice? ... How many hits did I get? Who looked at my profile today? Who read my post? Who linked to me? Will my blog make me famous? When can I quit my day job?"

Some People...Living Your Life

The Blog | Nora Ephron: Some People | The Huffington Post:
'Some people' are saying that Katie Couric went too far on 60 Minutes. I don't actually know who those people are, because I haven't done any reporting on it. Why bother? 'Some people' must be saying it. 'Some people' will say anything. And there's no real need to mention their names, because I can just say that 'some people' are saying it and get away with it.

Last night on 60 Minutes, Katie Couric kept referring to 'Some people.' She said that 'some' were saying the Edwardses were courageous, and 'others' were saying they were callous and ambitious. She said that some people were wondering how someone could be president if he was 'distracted' by his wife's health. ...

I kept waiting for John or Elizabeth Edwards to ask her who "some people" were exactly, but they didn't. They cheerfully answered her questions. Elizabeth Edwards said, "We're all going to die." And: "I pretty much know what I'm going to die of now." She said that on hearing that her cancer had recurred, she realized she had a choice -- to go on living her life, or begin dying. She said she had chosen to go on living her life. Katie Couric looked at her as if someone had set off a stinkbomb in the room and then asked another "some people" question, this one about whether the Edwardses were "in denial."


Is there more to be said?

Welcome, Arnie, and thank you. Toward a better future for the (Jewish) Conservative Movement

Chancellor-elect Arnold M. Eisen's Letter to the Community

March 26, 2007

To the JTS Community:

I write to announce that, effective immediately, The Jewish Theological Seminary will accept qualified gay and lesbian students to our rabbinical and cantorial schools.

This matter has aroused thoughtful introspection about the nature and future of both JTS and the Conservative Movement to a degree not seen in our community since the decision to admit women to The Rabbinical School nearly twenty-five years ago. Convictions and feelings are strong on both sides. Some will cheer this decision as justice long overdue. Others will condemn it as a departure from Jewish law and age-old Jewish custom. One thing is abundantly clear: after years of discussion and debate, heartfelt and thoughtful division on the matter is evident among JTS faculty, students, and administration. The same is true of professionals and lay leaders of the Conservative Movement. For many of us, the issue runs deep inside ourselves.

Those of us who undertook the ordination discussion at JTS acted not as poskim, or legal adjudicators — that responsibility fell to the Committee on Jewish Law and Standards of the Rabbinical Assembly (CJLS) — but as educators charged with setting standards for our unique academic institution. From the outset, as we set about considering what JTS should do on this matter, three steps seemed necessary.

First, our decision would be preceded by a deliberate and careful process in which the views of all constituencies would be respectfully heard and patiently considered. The positions of both sides would be thought through and the likely consequences weighed. This process is now complete. I will review its elements below.

Second, the announcement of JTS's decision would lay out our thinking on the matter in detail commensurate with the gravity and complexity of the decision.

Third, the announcement would conclude one process while beginning another. We resolved to take action that would help bring our movement closer together. To that end, we have launched — and in coming months will help to lead — a full-scale process of learning and discussion among all constituencies of Conservative Judaism aimed at a reclarification of our principles and a recommitment to our practices. Its specific focus will be mitzvah: our sense of being commanded and how we exercise that responsibility. The first steps taken in this new process are outlined below.

For me personally, these questions about core principles and practices are at the heart of the discussion in which we have been engaged this past year. The immediate issue was the ordination of gay and lesbian students as rabbis and cantors for the Conservative Movement. But the larger issue has been how we can remain true to our tradition in general and to halakhah in particular while staying fully responsive to and immersed in our society and culture. How shall we learn Torah, live Torah, teach Torah in this time and place? Without these imperatives, the decision before us would have been far easier for many of those involved. That is certainly true for me.

The decision, then, has for many of us been far from plain or simple. I say this despite my strong conviction that the decision I am announcing here is the right one. Let me now explain why I believe it to be so.

The Process

As I announced the day I was named Chancellor-elect of JTS nearly a year ago, the first responsibility for considering ordination of gay and lesbian students at JTS lay with the CJLS. If the CJLS ruled in a way that permitted this step, the JTS faculty would take up the matter. I pledged to take faculty opinion strongly into account if the time came for the JTS administration to make a decision.

The Conservative Movement has from the outset defined itself as bound by halakhah. This aspect of our tradition is precious to me, and it has always been determinative for JTS. It is one of the major ways the Conservative Movement navigates the complex path of change inside inherited tradition. Part of being a halakhic movement is debate over what that means: how halakhah relates to aggadah; how the authority of the rabbis relates to that of the communities they lead and serve; how change can be both adequate and authentic. But even as debate on these and other issues has proceeded, Conservative rabbis acting through the CJLS have for more than half a century considered how best to interpret and apply halakhah in particular circumstances. Their rulings have been all the more important, and more contentious, when circumstances were new and challenging. The decision concerning ordination of women was a case in point. So, too, is the question of gay and lesbian ordination. The CJLS first took up the question about fifteen years ago, debated it again over the past several years, and voted on it at its meeting this past December.

The Law Committee issued a split decision on December 6, 2006, a result in keeping with its commitment to halakhic pluralism. The teshuvah by Rabbis Dorff, Nevins, and Reisner permitting ordination of gays and lesbians received the same number of votes as the one by Rabbi Roth that prohibited it. This paved the way for the discussion at JTS to go forward, and the matter passed to the hands of the faculty.

Even before the December CJLS vote, JTS had initiated forums at which students could make their opinions known to one another as well as to the faculty and administration. These student forums continued after the Law Committee's vote. JTS administration and faculty explained to students what the CJLS had ruled and discussed with them what possibilities lay ahead for the future of the institution.

Administrative committees also began meeting before December 6. These committees convened with increasing frequency in the weeks following the CJLS decision. Their discussions are ongoing.

The Board of Trustees, at its meeting on December 7, discussed at length the process and its potential outcomes. The members of the board also aired questions and shared concerns and advice about the question at previous and subsequent meetings.

Immediately following the Law Committee decision, JTS, along with the Rabbinical Assembly and the United Synagogue of Conservative Judaism, commissioned an international survey of the opinions held by Conservative rabbis, cantors, educators, and lay leaders regarding the ordination question. We also polled the student groups most affected by the decision: those at JTS. Sociologist Steven M. Cohen undertook construction and analysis of the survey for us pro bono. We were unable due to constraints of time and budget to include rank-and-file members of Conservative congregations. Nor did we reach every single movement leader. However, many who were not polled directly did fill out and submit the survey that was posted on the JTS website. I have personally heard from hundreds of Conservative Jews on the matter during my travels around the country this year and through correspondence, email, and the JTS website.

The survey findings showed consistent majorities of roughly two-thirds or more in favor of ordination. Rabbis and cantors endorsed the move by almost exactly that majority. Conservative educators, executive directors, and other professionals were in favor 76% to 16% (with others undecided). Lay leaders voted for it 69% to 22%. JTS rabbinical students did so by a much slimmer majority (58% to 32%), as did the cantorial students (58% to 21%). Clergy in Israel were split down the middle. Respondents in Canada were overwhelmingly against ordination.

We undertook this survey as one factor among many informing our decision, not in order to have it dictate policy. The choice to ordain — or not to ordain— gay and lesbian Jews as rabbis and cantors at JTS will, as I have noted, have immediate and significant consequences for the Conservative Movement. We wanted to learn how the leadership of the movement, lay and professional, felt about the matter. For the same reason, I spoke at great length in January with the heads of the other Conservative/Masorti seminaries. I reported on these conversations, as well as on the Cohen survey, to both the faculty and the Board of Trustees.

The Faculty Executive Committee, at my request, accepted the task of designing a process by which members of the Faculty Assembly could inform themselves and give their opinions on the matter. Each person weighed the factors involved — including halakhah — as he or she saw fit. The faculty's input would contribute significantly in JTS's decision, I told them, but their opinions would not be binding. I myself took no position in the faculty debate. The Executive Committee, working with these guidelines, set up a series of faculty meetings. JTS administration assisted the process by arranging for two seminars led by distinguished guest lecturers on (1) recent developments in psychiatry and in its attitude toward homosexuality, and (2) philosophy of Jewish law. Several faculty meetings were devoted entirely to discussing and debating the matter. The voting members of the Faculty Assembly filled out private ballots and gave them to the Faculty Executive Committee, which then passed them on to me. The faculty asked, since their vote was not binding, that I report their response but keep exact numbers confidential. I subsequently reported the result of this ballot to the Faculty Assembly and to the Board of Trustees.

An overwhelming majority of those eligible to participate did so. A substantial majority of these favored the admission of gay and lesbian students to the rabbinical and cantorial schools. Quite a few, in keeping with my request, included detailed accounts of their reasoning. I will draw on these letters below.

At no stage did we at JTS take up the question of gay and lesbian commitment ceremonies or marriages. That matter is entirely outside our purview; decision on it rests with the Law Committee and with individual rabbis and congregations. Our concern was ordination alone.

The final stage in the process of reaching our decision rested with the JTS administration. We wrapped up our discussions earlier this month. Ultimate responsibility for the decision rested with me. I turn now to the reasoning behind it.

The Decision

Many participants in this process — whether rabbis on the Law Committee, faculty and students at JTS, members of the Board of Trustees, or leaders of the Conservative Movement — have experienced and explained it as a tug of war between two goods: fidelity to Jewish law and tradition and our sense of conscience as contemporary American Jews. How does one remain true to the dictates of tradition and yet adapt that tradition in ways compatible with changing realities and convictions? Both imperatives compel us. Both are precious to us. Several faculty members explained in their letters to me that they felt this tug in opposite directions acutely. We in the JTS administration have certainly felt this way. The search for balance is what has made the decision difficult. It is also what has made the discussion rich and, by and large, respectful.

It has not been a matter of how "we" the community of Conservative Jews should treat "them" — gays and lesbians. The latter are highly valued and respected members of our Conservative communities. Those opposed to the change, as much as those in favor of it, have taken pains to assert that this is the case.

That is why, even while denying gays and lesbians the right to ordination and commitment ceremonies in 1992 on the basis of its reading of Jewish law, the CJLS affirmed — likewise on the basis of Jewish law — that "gays and lesbians are welcome in our congregations, youth groups, camps, and schools."

Those opposing ordination have done so, almost without exception, for one reason only: they believe that Jewish law forbids it. Modifying established law on this score, they maintain, would weaken or destroy the halakhic character of Conservative Judaism. Some are convinced, moreover, that a modification of this sort would open the way for other, even more radical changes. But still others are equally convinced of the opposite: that failure to make this change would declare the incompatibility of Jewish law and tradition with Jewish life today, discourage young people from joining the movement, and therefore negatively impact Conservative Judaism. As Conservative Jews, we all sought the middle ground between the demands of tradition and the demands of life that has long distinguished our movement.

We at JTS, as I said earlier, were not called upon to make a legal decision. Our task was to weigh all relevant factors and decide what the right thing was for JTS and for the movement we serve. I, like most of my colleagues, was uncomfortable with the notion of choosing between two teshuvot that had been adopted as legitimate by the Law Committee using time-tested procedures. To reject the propriety of the CJLS process in this matter would call into question, after the fact, the mechanism by which law has been decided in the movement — and has governed JTS policy — for decades. Nevertheless, halakhah had to be a major factor in our thinking. We are an institution committed to the teaching and practice of Torah. In order to decide in favor of ordination, the rabbinic decision allowing for it had to be credible or persuasive in our eyes. Let me explain my own thinking on these matters.

I begin by directly confronting the two major obstacles standing in the way of a credible stance allowing for gay and lesbian ordination. The first is Leviticus chapter 18, verse 22. "Do not lie with a male as one lies with a woman; it is abomination ( to'eva)." Is the text not crystal clear? Is it not God's word? Why, then, were learned rabbis (and the rest of us) even debating the acceptability of homosexuality? The question has been posed to me many times. It cannot be avoided by any Jew who takes the Torah seriously. No matter how complicated our relationship to the Torah, how much we move away from obedience to its rules, or whatever our views on the divine or human nature of its authorship — one cannot cavalierly dismiss Leviticus and then claim faithfulness to the larger tradition of Torah of which the Five Books of Moses are the core. Integrity and authenticity require more than this.

Moreover, if one claims to be a halakhic Jew, the Oral Torah (as we call Jewish law and teaching over the centuries) also weighs in with serious objection to ordaining gays and lesbians. There is precious little legal precedent that can be invoked in favor of such ordination in the entire 2,000-year history of the Jewish rabbinic tradition. One finds instead either reaffirmation of previous opinion or utter silence on the matter — though there are legal opinions urging welcome of and compassion toward homosexuals. To Conservative Jews, the weight of Rabbinic opinion is no less decisive than the words of the Torah, and it is arguably more so. As Solomon Schechter explained a century ago, "It is not the mere revealed Bible that is of first importance to the Jew, but the Bible as it repeats itself in history, in other words, as it is interpreted by tradition." That is why the fact of Leviticus 18:22 in and of itself did not free the CJLS or any other Conservative Jew from the need to debate the matter of gay and lesbian ordination.

Our sages found ways two millennia ago to limit the applicability of biblical statutes, one famous example being Deuteronomy's injunction to put the rebellious son to death. The Rabbis effectively rendered that injunction unenforceable. They have defined and limited the applicability of numerous other biblical ordinances, including some set forth in Leviticus. I am among the faculty members (including many rabbis and experts in Talmud) who are persuaded by the argument that established procedures of halakhah allow for and mandate revision of the legal limitations placed upon homosexual activity; or perhaps one should say that these procedures allow for and mandate expansion of the welcome and acceptance accorded homosexuals under previous Law Committee rulings.

We believe that the law can be modified, and therefore should be modified, in accord with our society's changed knowledge about and moral attitudes toward homosexuality, knowledge and attitudes far different than those of our ancestors that guided their reading of law and tradition. Core Jewish teachings such as the imperative to treat every human being with full respect as a creature in God's image urge us strongly in this direction. We do not alter established belief and behavior casually. But we are convinced that change in this case is permitted and required, precisely in order to preserve the tradition charged with guiding us in greatly altered circumstances.

For we are Conservative Jews. The question facing us now, as always, is what the tradition as a whole commands us to do. Members of our community disagree about the correct answer to that question and about the proper method of answering it but not, I think, about the nature or urgency of the question itself. As Conservative Jews, we know that halakhah has a history. The fact of its development and change over time, partly in response to altered circumstances, ways of thinking, and moral convictions, was proclaimed by Zacharias Frankel at the very outset of the movement. It is a given in scholarship on Jewish law as well. The CJLS debate and the discussion in its wake follow from these principles of Conservative Judaism.

The debate over ordination of gay and lesbian students has served to highlight the need for serious discussion and resolution of these key issues of principle concerning what halakhah means for Conservative Jews. Such disagreements are particularly vexing to Conservative Jewish laypeople frustrated at the movement's inability to decide this and other matters quickly and unequivocally. Others, myself included, while no less impatient at times, actually take pride in the fact that our movement struggles over issues such as these. We do so as the heirs to Frankel's founding declaration of our purpose: "the reconciliation of belief and life, the assurance of progress within our faith, and the refining and regeneration of Judaism from and through itself." Both sides of the current debate have acted in accord with Frankel's call for "maintaining the integrity of Judaism simultaneously with progress." This remains, as he wrote in 1844, "the essential problem of the present." We cannot, any more than he could, "deny the difficulty of a satisfactory solution." But we must find a solution.

I believe, with the great majority of my colleagues on the JTS faculty, that the Law Committee, by voting in equal numbers for the two teshuvot, provided halakhic authorization for the ordination of openly gay and lesbian rabbinical and cantorial students. That permission having been given, I believe that the nature of our communities in contemporary America, and the moral convictions we hold, argue strongly for accepting gay and lesbian students for ordination. So does the fundamental mission of JTS. I have in my head, as I make this decision, the faces of numerous gay and lesbian students, colleagues and friends who I know would make fine rabbis and cantors. Their moral character is unimpeachable, their leadership ability remarkable. I am confident that they would serve as excellent role models and guides for their communities. We have the responsibility to train qualified gay and lesbian rabbis and cantors as best we can so they can serve the Conservative Movement.

Moreover, the decision to ordain gay and lesbian clergy at JTS is in keeping with the longstanding commitment of the Jewish tradition to pluralism. That commitment has been all the more central to Conservative Judaism. Pluralism means we recognize more than one way to be a good Conservative Jew — more than one way of walking authentically in the path of our tradition and of carrying that tradition forward. It means, too, that we respect those who disagree with us and understand that, in the context of all that unites us, diversity makes us stronger.

I take heart from the fact that, despite continuing disagreement over other contentious issues in some quarters, JTS and the Conservative Movement are much stronger because of changes that have occurred over the years. Neither the institution nor the movement has splintered, despite predictions to the contrary. I do not believe that we will splinter now, particularly if we take the proactive steps that I will outline below. Nor do I fear the "slippery slope," used by some as an argument against the change we are adopting. Every choice brings unintended consequences in its wake. We never have control over what those who come after us will do with the legacy we have left them. We do all we can to set course in the proper direction. I trust my successors to act responsibly with the legacy I pass on to them, just as we have carefully weighed the relevant precedents, reasons, and implications before taking the step we are announcing here. We owe this precedent to our successors, this bridge to the reality in which they will be called upon, as we are, to build and strengthen communities of Torah. I am confident that, if they are educated in the principles that have long guided this movement and if they experience the special pleasures and obligations that come with membership in it, they too will make decisions in a manner that takes Conservative Judaism forward and helps its communities, and the Jewish people as a whole, to grow.

In sum: The CJLS has authorized the ordination of gay and lesbian Jews as rabbis and cantors. A solid majority of Conservative clergy and lay leaders supports it. The JTS faculty likewise strongly favors it. I am convinced this decision to ordain is right — right not just on the basis of my experience as a North American who came of age in the latter part of the twentieth century, or as a Jew who seeks above all to remain true to the tradition we call Torah, but as an American Jew seeking wholeness and integrity in the combination of these to the fullest possible extent. That, I believe, is what Conservative Judaism is all about.

The Next Steps

Frankel was clear about the difficulty of this path. "Where is the point where the two apparent contraries should meet?" But he advocated that path nonetheless, as did Solomon Schechter two generations later. I am humbled by the long line of leaders and teachers, wiser and more learned than I, who have found the difficulties of charting this path formidable. But I am also encouraged by the fact that Schechter's resolution of the matter was not Frankel's, and that Louis Finkelstein's, too, differed from theirs in accordance with the unprecedented challenges that JTS faced in his day. The eminent historian Chancellor Gerson Cohen urged Conservative rabbis in 1972 to shape the movement in a way that was clearly and authentically Jewish but that would "also reflect our own formulation of Judaism, a formulation that will respond to our situation, our needs as Jews in America." That need is once again clear and urgent. How shall we undertake to meet it?

The proper way to do so, I believe, is not for JTS to promulgate a set of standards for Conservative belief and behavior. It is, rather, to engage Conservative Jews in discussion of what matters to them and why. Many of us are convinced, on the basis of numerous conversations with clergy and laypeople alike, that many Conservative Jews do feel a keen sense of mitzvah, in all the connotations stored up in that word by the Bible and the sages. They feel that there are deeds they should perform, activities in which they should engage, loyalties they should cherish. They feel responsible for all these, commanded to do them, drawn to the discipline of which they are a part, privileged to perform them. They take on these tasks, in many cases, not only out of obligation but out of love.

It is my hope and belief that getting Conservative Jews to talk about these matters will be a step toward greater commitment and consensus. Our communities will be strengthened by the very act of discussing our "obligations of the heart" honestly and face to face. We will come to realize in doing so how much unites us as Conservative Jews. The sense of what binds us together will grow still more if we can arrive at consensus about the norms of belief and behavior that should guide us. I believe we can.

JTS has already taken on the responsibility for leading this discussion. Working with the Chancellor's Rabbinic Cabinet and with the RA and the United Synagogue, we have set in motion a process that we hope will eventually include every arm of the movement as well as professional and lay leaders. Our faculty and students will be actively involved. Stage Two of that process — logically and pedagogically dependent on the first — will be reclarification of the place of halakhah in the movement: the nature, authority, and scope of Jewish law in relation to other sources of authority and guidance. We will embark on that stage in the upcoming two years.

Concurrently, we must and will reaffirm the legitimate place in our movement — and at JTS — of all who take part in this debate. Discussion of how and why we feel commanded, and to what, should reinforce the commitment to pluralism on all such points far more effectively than preachments by me or anyone else could ever do. That discussion, face to face and heart to heart, will serve to remind us all how precious it is to be engaged in the ongoing conversation that defines us as members of the JTS community and as Conservative Jews.

Finally, because our ultimate goal at JTS is to serve Torah and the Jewish people, we will establish and maintain regular contact on the issues dividing us with Conservative clergy and lay leaders elsewhere in the world. JTS will intensify contact with the Ziegler School of Rabbinic Studies at the University of Judaism in California, the Schechter Institute in Israel, and the Seminario RabĂ­nico Latinoamericano in Argentina and encourage an increased number of joint missions of lay leaders and more exchanges among the faculty and students at these institutions. We will also take special steps to strengthen the relationship between Canadian and American Conservative Jews. All these actions would have been undertaken to some degree by JTS in any case. They form part of our basic mission as an institution. The decision we have just reached renders them urgent. We will respond appropriately in the coming weeks and months.

In closing, I want to thank the many individuals who took the trouble to write to or meet with me, and in particular those who carefully and honestly explained why they were opposed to the move we have now taken. I hope that all will now join me in focusing on the great deal of work ahead of us. As always, I invite your comments, concerns, and assistance.
Thank you.

Playing this announcement straight--Hurrah!

JTS to Accept Qualified Gay and Lesbian Rabbinical And Cantorial School Students
— Plans to Embark on Dialogue on Principles and Practices of Conservative Movement —


New York, NY, March 26, 2007 — Following the completion of a thorough and deliberate review process, The Jewish Theological Seminary has decided, effective immediately, to accept qualified gay and lesbian students into its rabbinical and cantorial schools.

The decision comes three months after the Committee on Jewish Law and Standards of the Rabbinical Assembly approved a teshuva (responsum), permitting the ordination of gays and lesbians, thereby paving the way for JTS to consider the issue.


The application deadline for the September 2007 incoming class has been extended until June 30, 2007, to accommodate any new applications that may be submitted as a result of this announcement. Information about applying to the rabbinical and cantorial schools is available by contacting: The Rabbinical School at (212) 678-8817 or www.jtsa.edu/rabbinical and the H.L. Miller Cantorial School at (212) 678-8036 or www.jtsa.edu/cantorial.

Baruch dayan emet: Sylvia Straus Heschel, Widow of Jewish Scholar

NEW YORK (AP) -- Sylvia Straus Heschel, a pianist and the widow of the prominent Jewish theologian Rabbi Abraham Joshua Heschel, died Monday at the age of 94, her daughter said.

Heschel died in her Manhattan home, according to her daughter, Susannah Heschel.

Abraham Heschel taught Jewish ethics and mysticism at the Jewish Theological Seminary in New York, where he combined deep scholarship with a strong moral passion that led him to march with the Rev. Martin Luther King Jr. and to oppose the war in Vietnam.

Sylvia Straus was born in Philadelphia and grew up in Cleveland. Susannah Heschel said her parents met during World War II in Cincinnati, where her mother was studying the piano with the Polish-born concert pianist Severin Eisenberger and her father, a refugee from Nazi-occupied Poland, was teaching at Hebrew Union College.

'They were both at a dinner party and my mother was asked to play,' Susannah Heschel said. 'She played and he fell in love with her.'


Abraham Joshua Heschel, z"l, was one of the great figures of Jewish life in the twentieth century. He remains among my heroes and exemplars. I continue to learn from his works, his life, his students. By all accounts, his wife was a source of strength and inspiration to him.

My condolences to Susie.

Monday, March 26, 2007

Venturing into Iraq: Considering Peter Galbraith's proposal for a strategic alternative

Considering Peter Galbraith's proposal for Iraq. - By Christopher Hitchens - Slate Magazine:

In my one tentative, partially concealed venture on this blog into the quagmire of Iraq policy (hardly my area of special expertise), I alluded briefly to Peter Galbraith's ideas as among the most sensible I have encountered. At very least, he is asking the right questions at this stage of our failed adventure. Today's Slate contains an interesting discussion of Galbraith's new book by Christopher Hitchens, who has probably managed to alienate nearly everybody, left and right, over the course of his career. Here are excerpts:


[Galbraith's] latest book, The End of Iraq, is notable for two things. First, it gives one of the most acute and intimate portraits of the Bush administration's catastrophic mismanagement of the intervention. Second, it proposes a serious program for a radical change in policy. What are our irreducible objectives in Iraq? To prevent the country and its enormous resources from falling into the hands of the enemies of civilization—most notably al-Qaida—and to protect what remains of the secular and democratic alliance that we once hoped might emerge to govern the situation. ...
Given the apparently irreversible fracturing of Iraq into at least three confessional and ethnic parts, an outcome that may have been innate in the Iraqi state, we cannot hope—so runs his argument—to police or manage the sectarian horror show that has been launched by the parties of god. And we run the grave risk of being drawn into it. However, there is a possible way of saving some of our credit. If we reconfigure our military presence to the north, in the three Kurdish provinces, we can reduce the size of ourselves as a target, remain just "over the horizon" in the case of an al-Qaida challenge, be available "case by case" in the event of any appeal from the Iraqi government for help, and protect the most outstanding of our achievements in the country, which is the emergence of a relatively peaceful, democratic, and prosperous region under coalition auspices.


With Democratic Congressional leaders and progressive organizations fussing over legislative proposals (certain to be vetoed if they get that far) on funding and timetables, isn't it time for some grownups to discuss serious strategic alternatives to Bush's failed policy? Like it or not, we have continuing interests and responsibilities in the Persian/Arabian Gulf, and premature withdrawal alone is no more the comprehensive solution here than in matters of birth control.

What was I just saying about efficacy? Another blogger heard from...

Althouse:
In half a century, I have not seen a president so isolated from his own party in Congress...
not Jimmy Carter, not even Richard Nixon as he faced impeachment. Says Robert Novak.


Talking about efficacy, here's my illustrious colleague Ann Althouse favorably quoting Robert Novak (criticizing the Bush Administration for incompetence) not a day after I gratuitously trashed him as an unprincipled Administration water-carrier. Very sly move, Ann.

But at this point, I'm not sure what courage (or independence) it takes to criticize this Administration for incompetence. When the most conspicuous rats start abandoning ship, you know it must be sinking.

Reagan Budget Chief Charged With Fraud

Reagan Budget Chief Charged With Fraud - New York Times

If memory serves, David Stockman was one of the conceptual architects and principal governmental spokesmen under President Reagan for what has come to be known as the policy of "starving the beast": huge tax cuts, followed by enormous budget deficits and a towering national debt, providing the rationale for a generation of curtailing discretionary domestic programs, particularly those providing assistance to poor and working class Americans.

Stockman got caned, and later canned, for letting himself be a little too public (and preening excessively) about the strategy (which he was in charge of implementing).

Which drove the country toward bankruptcy.

And provided the policy model for our current Administration.

At least Stockman's learned to be a bit more discreet: it seems this time he was indicted for covering things up, not letting them all hang out.

Clinton Promises Universal Health Care, Says She "Learned A Lot" During Failed Health Care Effort

Clinton Promises Universal Health Care, Says She "Learned A Lot" During Failed Health Care Effort Of Husband's Presidency - CBS News

I'm new to this blogging business and haven't yet figured out how to get my site meter working properly, so I really have no idea who is reading me at this stage.

But there is a wonderful sense of efficacy in seeing that Hillary Clinton has responded so quickly to my call, early this morning, that she set forth her plans for universal coverage and address what she had learned from her experience with Hillarycare in 1993-94.

Really very satisfying.

Next: world peace.

Wordplay

Let's see now.

Warmup:
Professor Kaplan is a brilliant, if somewhat abstruse, scholar of the conceptual foundations of jurisprudence.

Now, for real:
Yet even his formidable armamentarium of rhetorical skills is insufficient to render his architectonics of law in mellifluous, straightforward prose.

There, I did it. Pay up.

I'll leave the part about putting it into iambic pentameter as an exercise for an intrepid reader. I gave up on that several centuries back.

The Gonzales Watch: Aide to Invoke Fifth Amendment

Gonzales Aide to Invoke Fifth Amendment - New York Times: WASHINGTON (AP) -- Monica Goodling, a senior Justice Department official involved in the firings of federal prosecutors, will refuse to answer questions at upcoming Senate hearings, citing Fifth Amendment protection against self-incrimination, her lawyer said Monday.

Good to learn that some senior officials at Justice have heard of the Constitution, if only selected clauses of the Fifth Amendment. First evidence of familiarity with that document we've seen from this gang in some time.

Who knows, before long, they may be showing some interest in habeas corpus as well.

The Gonzales Watch: Andy Borowitz Scores Big

[working on link problem--Entry is all Andy]

Bush Offers U.S. Attorneys New Positions in Iraq
Attempt to Calm Furor over Mass Sacking

In a bold attempt to end the controversy over the sacking of eight United States attorneys, President George W. Bush today offered the fired prosecutors what he called “exciting new positions” in Iraq.

With the President facing pressure from Congress over the firing of the attorneys and funding for the continuing war effort, Mr. Bush told reporters at the White House that sending the “surge” of eight U.S. attorneys to Baghdad was a “win-win” solution to both problems....


Mr. Bush said that dispatching a surge of lawyers to Baghdad will be send a strong message to insurgents and terrorists that they can no longer take the law into their own hands.

“I have strongly felt for some time that we need more suits on the ground,” Mr. Bush said.

Toward a more thoughtful campaign discourse...and some thoughts on Health Care Reform

Campaign Candor - New York Times

Bob Herbert opines on the significance of the latest personal turn in the endless campaign:

It would be far more constructive and interesting if this heightened attention to Mr. Edwards’s campaign resulted in the media and the public taking a closer look at the issues he has been pushing, not just in the campaign but ever since his unsuccessful run for vice president in 2004.

If that were to happen it could be part of the silver lining that Elizabeth Edwards hopes will emerge from her family’s latest devastating crisis. ...

The war goes on, and fate has dealt the Edwards family another devastating blow. The rest of us can help invest the absurdity of their tragedy with meaning by paying closer attention to the issues that are important to them. Whether one ends up agreeing with them or not, it’s a way of opening the door to a more thoughtful, rational way of selecting our presidents.



Edwards has been talking about poverty in America, and has proposed a plan for health care reform. My own strong preference, in contrast with Edwards' variation of "play or pay", is for universal coverage under a single payer plan. I would be open to consideration of an (expensive, non-tax subsidized) opt-up for those willing to pay for faster access to non-emergent services and penthouse level amenities (a reluctant concession to the political realities of wealth and power in America). If the base plan is essentially Medicare (not Medicaid) for all, perhaps even strong egalitarians can come to tolerate the equivalent of Medicare-supplemental policies, and perhaps it might serve to buy-off some insurance company opposition (though I wouldn't hold my breath on that).

With more than nine months to go before the primaries, perhaps we can gestate and seriously debate some real ideas in this campaign. With health care as the leading domestic issue, and education and poverty (keys to meaningful opportunity in America) deserving a place not far behind, maybe Hillary, Barack and others can step up to the plate, and the media can devote the equivalent of their daily sports hole to serious consideration of the candidates' positions on issues that matter to the lives and life opportunities of all Americans. Who knows,maybe the public could even pay some attention to something beyond celebrity.

A place to begin: What can we learn from Hillary's catastrophically failed effort at health care reform in her husband's first term?

In the years since, most everything Harry and Louise warned of has come to pass: Health care has gotten much more expensive, waits have grown longer, and the conditions of service have become more bureaucratic. Someone other than the doctor at the bedside is making decisions on patient care (often on financial grounds, not medical considerations). Doctors are spending less time with their patients. Patients can't choose their own physicians: the docs quit and move their practices in response to intolerable bureaucratic constraints on their time and medical judgments, and employers switch plans to save a buck, leaving established doctor-patient relationships in the dust. (Who ever decided our employers should choose our doctors for us, and why?)

And access has gotten worse. More Americans are uninsured. People go to the ER for routine clinical services, waiting for untold hours and costing all of us a bundle. Drug prices are out of control. Administrative costs are insane.

Except it's the insurance companies and Big Pharma and the HMOs, not the government.

What can we learn from that?

The Gonzales Watch: Now here's a thought:

More on our wayward A.G., from today's Huffington Post:

If the president continues trying to run out the clock on this scandal, Congress should immediately begin impeachment proceeding against Alberto Gonzales. It's the quickest way to the truth...


But why stop there? Cheney, Bush...

The school principal in Bong Hits 4 Jesus had the idea:
Let's form a nice, straight line...

Or, as some of my tribal/ethnic cousins might have it:
Have I got a deal for you! 3 for the price of 2!

Sunday, March 25, 2007

( ?

It has been suggested that I try writing my posts with one parenthesis (what is the singular form?...
tied behind my back.

I will consider the suggestion. TWB

The Gonzales Watch: When Will Fredo Get Whacked?

For a compelling review of some of the lowlights of Mr. Gonzales' swell adventures with W, see today's op-ed by my distinguished and ever-insightful college classmate, Frank Rich.

When Will Fredo Get Whacked? - New York Times

Beginning the Gonzales Watch: "Or they're out to lunch..."

(Sam Donaldson on this morning's ABC This Week.)

Sometimes the talking heads surprise you by making principled statements contrary to the political interests they typically serve.
Consider George Will's performance on this morning's This Week, particularly in the segment on Alberto Gonzales (yes, I'm going to kick Gonzales again, and will probably continue to do so until he leaves the scene of his many crimes. I would prefer in handcuffs with full perp walk regalia, but that is negotiable--maybe with mug shot and fingerprints, but out the back door of the Justice Dept. Kind of like testimony without oaths or transcripts. All the Rove...er, rage, these days.)

Among Will's comments, on the varying current scandals (my transcriptions, off air):

>[on the US Attorney firings:]"...or he's not lying, which is worse, in a way..."

>[on the national security letters:]..."no one did this deliberately, and that's really scary..."

and my favorite, summing things up:

"He serves a President who has made very broad...I would say extravagant, claims of executive power...He [the President] needs a very nimble and intellectually powerful, not to say inventive (chuckle) Attorney General who can defend these claims, and that is not Mr. Gonzales."

Right. Or, better, an A.G. who pays attention to the Constitution, and to his, or her, duties to that document. And who does not go all weak-kneed in the Oval Office.

If I remember correctly, Mr. Will was a big fan of Edward Levi, brought in by President Ford to serve as A.G. in the aftermath of the Watergate scandals and the Nixon resignation, to restore honor, competence and a measure of independence to the Department of Justice. There is a novel thought.

To repeat the oft-made principle, as it applies to the particular circumstance: The President (and the Attorney General) may have the legal "right" to replace U.S. Attorneys; that does not necessarily make particular firings (say, for investigating and prosecuting members of the President's political party, or failing to bring dubious charges against political opponents during the height of election season), "right" in a moral or governmental sense. Our only defense of "right" in those deeper senses is political accountability. Mr. Will is making a worthy contribution toward that end.

While I don't agree with Mr. Will on most matters (including his cavalier, if purportedly Constitutonally-based) dismissal of meaningful voting rights and representation for citizens of the District of Columbia (where I once lived and where our children were born), it's nice to see that not all members of the punditocracy (to contrast a particularly notorious example, consider Robert Novak, although there are certainly parallels on the Democratic Party side as well) are not pure water-carriers for their political patrons.

(Gee, I must say, as someone new to blogging, that this is fun. Much better than writing unpublished letters to the Times, and I don't even have to find an article to serve as the "hook"!...Maybe that was one of my problems getting published more often.)

Bong Hits 4 Jesus: Sam Alito to the Rescue?

And on the subject of appreciating help from unexpected quarters:

From today's online Wisconsin State Journal, I think quoting from a story in the Times:: "In that case, Saxe v. State College Area School District, Alito said the policy 'strikes at the heart of moral and political discourse - the lifeblood of constitutional self- government (and democratic education) and the core concern of the First Amendment.' His opinion was based on an interpretation of the Tinker precedent that was notably more robust than that put forward on Monday by Starr and Kneedler and, seemingly, by Roberts.

During the argument, Alito interrupted Kneedler as the deputy solicitor general was asserting that a school 'does not have to tolerate a message that is inconsistent' with its basic educational mission.

'I find that a very, very disturbing argument,' Alito said, 'because schools have defined their educational mission so broadly that they can suppress all sorts of political speech and speech expressing fundamental values of the students under the banner of getting rid of speech that's inconsistent with educational missions.'

Well said, and very different from the approach of the new Chief Justice.

I actually teach a course (in two flavors, one for law students, one for undergraduates) entitled "Children, Parents and the State". I love teaching it: it provides the opportunity for engaging, and encouraging students to discuss, many of the hottest topics in the ongoing "culture wars." The course examines the allocation of decisional authority over the lives of children, with a particular focus on the developing legal rights of adolescents as they mature toward adulthood. One of our principal cases of study is Tinker, which involved the wearing of black armbands to protest the Vietnam War.

Personal aside: I wore a black armband to my high school graduation the week after the assassination of Bobby Kennedy in June of 1968. I joined classmates wearing protest signs on the backs of our graduation robes (for women's equality) to our Harvard graduation in 1972. I wrote a number of controversial articles for my school papers. So did both of my own children--was, and am, I ever proud of them, then and now (Is that okay to say?). We're a family of troublemakers from way back, for those wondering about my involvement in more current controversies. Probably has something to do with my wanting to be a law professor.

Needless to say, this issue strikes very close to home for me.

There is, of course, a considerable likelihood that some Justices will "go off" (precise sense unstipulated here) on the drug issue (perhaps enough to contribute to a majority opposing the students' claim in this case), giving that a priority over the First Amendment's strong application to the students' right to demonstrate. (One critical technical legal issue involves appropriate expectations for the school principal's ability to understand the state of the law following several Supreme Court decisions cutting back very considerably on the initial promise of Tinker. Having taught these cases, I agree the current state of the law is pretty much of a hash, to pick an evocative term. God save me, I may even agree with Scalia on that limited point.)

If so, count one more collateral casualty of this nation's proclaimed War on Drugs, which has been approximately as successful as our War in Iraq. (For those interested, I prefer what is called a "harm reduction" strategy for substances like marijuana, based on regulation of sale and use--particularly for the young-- rather than a "prohibition-style" approach.) But that is a subject for another day, another posting.

Disclosure: Samuel Alito was the teaching assistant in my first-year law school course on Constitutional Law. I do not agree with him on very much, and do not anticipate being a fan of many of his votes as a Supreme Court Justice. I do think he is a person of integrity and principle (even where I may disagree with his principles, and with his politics), and I hope that will show in his work on this case.

I invite serious comments on this posting, and plan to return in greater depth to several of the issues lightly dipped into on this first venture into mentioning them.

Friday, March 23, 2007

How can we heal?

There has been much talk at UW Law School about trying to heal and move on from L'Affaire Kaplan. In my own view, certainly one informed by my long friendship and many conversations with Professor Kaplan, he has shown extraordinary restraint while under nearly constant assault for things he has been accused of but did not do. He wrote an extraordinarily gracious statement to our Dean Davis, subsequently publicly released, which repudiated the statements wrongly attributed to him, calling them hateful. He eloquently expressed his understanding of the pain sustained by his students, and by the Hmong people more generally, in the course of their tempestuous history over recent generations in South East Asia and in America, and apologized once again for his part in causing the pain experienced by his students and others. He did his very best to allow for a gracious mutual de-escalation of tensions. He did not, however, violate his own integrity as a scholar or a human being to repudiate his pedagogic commitments or his commitment to treating his students as developing legal professionals capable of learning and growth.

Yet this has not been enough for at least some of Len's former Hmong students, some other students at the law school, and others in the Hmong and larger Asian American communities outside our building and our university. One law school student, previously responsible for precipitously circulating a false, reckless, and inflammatory (and potentially libelous) attack on Professor Kaplan and his reputation, chose this week to violate the clear, forward-looking ground rules (observed by all others present) of a recent law school teaching workshop, to renew her ongoing personal attack on Professor Kaplan. (She had not been present either in the February 15 class or in the February 20 meeting between Professor Kaplan and his actual students. One wonders what agenda she is pursuing, and why.) Attacks by other groups continue to come in to the law school and to be posted on web sites receiving international attention. The law school's hope, however well-intentioned, that we could somehow heal and move on without facing up to the realities of what actually happened in Kaplan's class on February 15, has proved vain. As one commentator to this blog has observed, we have been ignoring the elephant in the room. Healing cannot progress while the wounds fester.

Now, a lengthy diversion into my recent medical history, with the promise that I will bring us back to show its relevance. Since my blog also purports to attend to "the experience of illness," this account will be relevant to my overall purposes in this second sense as well.

Just about two years ago, I was diagnosed with a "top of the charts" aggressive prostate cancer, present in abundance throughout my prostate gland (we hope not beyond). There was considerable doubt that surgery could reliably get it all; if I had surgery, I would probably need a full course of radiation as well, and probably additional treatments beyond that, with a panoply of likely side-effects. We decided on a non-surgical course, initial hormone suppression, followed by an aggressive course of external beam radiation, and then further hormone suppression. It was not pretty, and was further complicated by my wife's contemporaneous health issues. So far, so good: I got the needed radiation, eventually came off the hormone suppression protocol, and so far, the cancer has not returned. I am grateful for that. All of us live with uncertainty about what the future will bring; perhaps I have a bit more reason than some to be conscious about the particular uncertainties that I face. (The statistics suggest that in the population of men with prostate cancer, more men die of heart disease than of their cancer. I have more than my share of cardiac risks as well; who knows--that may be a kinder death than metasteses to the brain or bone.)

I was making a very slow recovery, encountering major daily problems with lack of energy, inability to concentrate, some memory deficiencies, and several of the well-known but unpleasant to discuss side-effects of treatment for prostate cancer. Still, I was looking forward to my return to teaching in Fall of 2006. I attended my wonderful daughter's wonderful wedding to my wonderful new son-in-law in Boston in mid-August, and while the travel logistics took their toll, the experience was one of the happiest in my life, the more so because my wife and I were healthy enough to be present and, as my wife's grandmother once said of us a generation earlier, to dance at their wedding. (Sadly, my wife's mother unexpectedly became ill and quickly passed away a few weeks before the wedding, making for a complex blend of powerful emotions.)

I became quite sick shortly after my return to Madison following the wedding. The symptoms and labs were not definitive, and it was initially diagnosed as a transient and self-limiting virus. But I did not get better, and my fever kept getting worse. Finally, an early morning trip to the Emergency Room, an inconclusive exam, and then, fortunately, some fancy imaging of my skull, where much of the pain seemed to be originating. Lo and behold, the CT picked up a significant cellulitis of the scalp, not easily visible under my hairline (at least until after they figured out where to look). It was bacterial, not viral, and antibiotics could help. We never did get a firm fix on the bug, although it was most likely drug resistant and very well established in my system by the time we began treatment.

I was admitted to the hospital for stabilization and IV antibiotics. Thus began what turned into a sixteen day hospitalization, the first of three. My fever was raging. My kidneys kicked out of commission. My blood pressure swung wildly. Consultants came and went. The doctors huddled on whether to send me to the ICU. My wife really got scared when I started signing informed consent forms for various interventions without arguing about them or trying to redraft them. She had never seen that before. I learned subsequently that there was concern as to whether I would survive. Many of my symptoms eerily mirrored those experienced by my mother-in-law a month before (I slept in her bed when we came after the funeral to close up her apartment); she died in less than four days after beginning to feel ill.

I survived. Not without some challenges: the infectious disease folks were exhausting their armamentarium of fancy new antibiotics to try to bring my infection under control, and I kept having significant adverse reactions to them (ultimately requiring two additional brief hospitalizations). Mostly the antibiotics didn't make me better, although they probably kept me alive. Somehow the antibiotics couldn't defeat the infection on their own. It was all very mysterious. There was a raging infection somewhere inside me, probably above the neck, but they couldn't really find it, and the antibiotics couldn't defeat it. I was imaged every which way, poked and prodded and viewed. The radiologists thought there was probably an infectious pocket somewhere in my skull, but the ultrasound folks couldn't locate it precisely, and argued that it wasn't there. Finally one brave soul redid the ultrasounds, told me he couldn't be absolutely sure, and, with my feeble consent, plunged a syringe into the back of my skull. He hit a gusher. Out poured the gunk, syringeful after syringeful. It was very impressive, at least before I more or less fainted. I think that is the word they used, "impressive."

Thus I learned about my abscess, and began my short course on why it was so important to drain the abscess in order for healing to begin. You have to find the gunk and get it out for healing to proceed. And that course was not so short. Every day for the next two or more months, in hospital or at home, a doctor or nurse would have to squeeze that foul stuff out of a cavity in my head (we talk about the "yuk factor" in bioethics--this was a different kind of yuck), stuff my cavity with gauze to absorb the next day's production, and wrap on a headdress to keep it all together. Next day, unwrap the headdress, extract the long, pus-infused string of gauze (you really didn't want to see, or to smell, that process), squeeze out my head cavity, and go through the process again. Every day. For two months or more. Until the cavity cleaned out, and closed itself up, I couldn't finally get better. Eventually I did, mostly. Still pretty weak. Not much energy. Very low levels of testosterone, ever since the hormone suppression began. Still trying to cope with the continuing aftereffects of the prostate cancer treatments. Hoping to be able to come back to teaching, after a long pause, in the fall term.

That's enough on my personal health, at least for this posting.

I promised I would make that long excursis relevant. I'll try. I really don't think the law school can heal from its recent wounds until we confront and deal with the sources of our illness, rather than putting our heads in the sand, making equivocating statements, trying to finely balance everything so no one feels bad.

Let me say what I feel, think, and believe. I do not believe my friend and colleague Len Kaplan did anything wrong in his February 15 class. I think he did his job, and that it is a job that needs doing, at this and at every law school worthy of the name. I think he did his honest best in his meeting with the two students present in his February 15 class to explain what he was trying to teach, and why, and why it was important to do so, not least (but also not only) to improve actions by federal and state government to assist the Hmong in their acculturation as neighbors and fellow citizens here in Wisconsin and throughout America (and in South East Asia, where Hmong continue to suffer terribly). He sought to encourage his Hmong students to return to the class, to share their knowledge and experiences and perceptions, and those of other members of the community that they might wish to bring along, with the rest of the class, so that all could learn from one another. He sought to be a teacher, to re-include his Hmong students in the community of his class, and to turn the potential of diversity into a reality for collective learning. He sought to help his students marshal their emotions to energize their advocacy as future lawyers. He sought to respect them as future professionals and as persons, not to patronize or condescend to them. And for that, he has been pilloried and crucified.

It is not right. It is time that we as a community say so, in unmistakable and unequivocal terms. We all know that Len Kaplan did not make the statements wrongly attributed to him. We know he did not seek to put his students on trial, or to abuse his power as a professor. He sought to teach. What he sought to teach was important, and in our finest traditions as a law school. The nonsense has to stop before we can move forward.

It is not my purpose to dwell on how the students involved (in their varying roles) might have handled this situation differently, and better (although I think they could have, and should have). I would like this institution to be a more caring and compassionate place than it currently is, and that certainly extends to these students. And to all our students. And to all of us. School is a place that professionals in training can make mistakes, and learn from those mistakes, without paying too high a price. We should be encouraging our students to take more risks (within reason), and to develop the experience and improved judgment that come from making real choices, with consequences, and learning from the results, both good and bad. These students showed considerable courage in coming forward (if perhaps not always commensurate wisdom), and that, at very least, should be applauded.

Perhaps we can all learn from this unhappy chapter in our institutional history. But we have to be clear about the right lessons to be learned. And that requires a truthful accounting, however layered with compassion. The students have wanted to be heard. They have been. Perhaps now they can try also to listen. As can we all.

The students have been christened (that's a Jewish professor referring to Hmong students--talk about cultural contradictions) The Magnificent Seven, after the American film, adapted from the Seven Samurai. Personally, I always thought Rashomon was the better and deeper movie, and the better image to invoke here. I've tried here to provide my view of the situation. I'm content to leave it at that.

So how do faculty talk about difficult issues?

Note: the following constitutes an email exchange between my colleague and fellow Torts professor Peter Carstensen and myself concerning my four part posting late Friday afternoon, which I transmitted to my faculty colleagues on our internal "factalk" listserv. Peter is not the only colleague expressing unhappiness with my postings, but this is the only extended written dialogue I've had thus far.

Peter and I had better times together in the past, and have had fun and profit discussing both tort law and the teaching of tort law in past years. We both studied under Guido Calabresi at Yale, and have been deeply influenced by his prodigious contributions to our understanding of tort law in particular, and law more generally. This posting reflects a very sad deterioration in our relationship, which has been exacerbated by our sharp disagreements over L'Affaire Kaplan, and the law school's response to it, over the past six weeks.

Peter wrote the initial letter: I have interposed my response to create the form of a dialogue. [Peter's email in its original form is posted as a comment to this entry.] Peter has not had the occasion to respond to my responses [I'm posting this online on Saturday morning, having not heard from Peter privately since sending my reply to him first]; if he wishes to do so, I will try to arrange for a next round. I have made a few stylistic and substantive modifications to my own half of the dialogue; I've tried to highlight any major ones. [As a result, I don't have to [sic] myself here--obviously an unfair advantage typographically.] I've tried to reproduce Peter's side of the dialogue precisely as written. Obviously, some allowances must be made for occasional typos in such an exchange, but I didn't want to make any changes in his part of the conversation to correct obvious typos.

Perhaps I should add that not all of my communications with colleagues are quite this spirited.

Peter Carstensen wrote:
> Alan (for you alone without factalk),
>
> P: But for your sensitive character,

A: Oh, I've toughened up over the years. Must be all that stuff in torts about [limiting certain kinds of damages to persons with] reasonable sensibilities. Or maybe facing death, and deciding what is important for the rest of my life, however long that may be.


>P:... I would respond to your postings on factalk this evening that the issue in the news reports you have shared with us is not whether a faculty member can or should present the information, but rather the thought that goes into the presentation and any adeverse [sic] consequences that follow from such a presentation.

A: That is fair, so far as it goes. But see below.

>P: Before a class, a teacher needs to think through the implications and likely response that sharing the information (assuming it is presented in the belief that it is an accurate statement of facts) may have and be clear about why it is being done. If the faculty member is teaching about corporate law, neither of your examples is apparently relevant,

[Added here: A: In that case, neither is this entire conversation]

> P: But if the class is one on family law (the role of convential [sic] or customary rules would be highly relevant and complicated) or first amendment issues (when can/should the law intervene to limit or forbid knowingly false statements about religious groups), then it is plausible that the faculty member would want to use the current event to focus class discussion of important legal issues.

A: How about a class on legal process or jurisprudence [the courses Len teaches], where the precise question under discussion is how law deals with differences of culture and cultural assumptions among disparate groups living under a purportedly "neutral" law? The question in this NYT article is precisely the issue Len was trying to bring out in his class, and to examine in a number of differing national and legal contexts (in what he terms "the liberal state"). The question of whether a teacher could properly bring in precisely that article [NYT on the German court] to focus such a class discussion is exactly the question I am trying to raise, and to get my colleagues to confront. "Teaching the controversy" is precisely the issue. It should have its place --a proud and honorable place--in any law school that I would want to be associated with. How about you?

>P: As you heard on Tuesday, the key for being a competent teacher is to think about the presentation of controversial information ahead of time, including verifying its accuracy, and reflect on how to bring this information to a class in a way that encourages rather than discourages discussion.

A: Thanks for that useful reminder. I'm all for that. Always have been, always will be. That is my regular practice in and out of the classroom. (BTW, I note that my [factalk] postings late this afternoon, however characterized, seem to be having precisely the effect of encouraging some meaningful, rather than phony, discussion among its intended audience.)

>P: Second, if despite the teacher's best plans, students are troubled by the manner of presentation or the implicit or express assumption of the teacher that the infromation presented is factually correct (e.g;. suppose the statement were that all German's [sic] believe in the Koran and so second and third generation German imigrants [sic]are potential terrorists),

A: And what does that have to do with anything? It's a classic red herring (or red brigade-doon?) in terms of Len's situation.

>P: ...then the teacher, when questioned by students concerned by such arguable false statements,

A: BTW, I've had occasion in recent weeks to speak with mental health practitioners who have worked with Hmong patients in situations of the sorts Len was trying to address. I've read a bit of the case law, and some of the law review and anthropological literature [including the Wisconsin Law Review piece I posted earlier], relating to these issues. How about you? I wouldn't be quite so quick to jump to factual conclusions as you seem to be, or to mush important distinctions in the meaningless blather about "avoiding stereotypes". Both Len and I are about making careful distinctions in full factual and social context. I'm not sure a public debate on the issue is necessarily the best idea at the moment, [added: but here we are.] My own sense is that the realities are reasonably complex, rather more so than was suggested by the re-education lecture on the heroic Hmong people and our virtuous joint struggle against the Commies that we were subjected to. [Stylistically edited to clarify meaning: I wish the lecturers spent more time]... confronting the hard realities of the range of Hmong experience in America, which was Len's actual subject for the relatively few minutes he devoted to it (among many other examples he covered that day).

I do believe that during the Vietnam War and post-War circumstances, America abandoned and betrayed the Hmong, and that we owe a continuing debt of honor to try to improve their circumstances both here and in South East Asia. So does Len. That is what he was trying to say, and to teach, in a small part of that class. [He also tried to make this clear in his statement of March 5 to Dean Davis.] It should not follow that some of the difficulties faced by the Hmong in acculturating into American society, like the problems of virtually all immigrant (and indigenous) groups, should be immune to or off-limits from critical inquiry and analysis. Or do you disagree?

>P: ...has an obligation both to explain why the example was relevant and to justify its use/accuracy (not demand that the students disprove its validity especially if the teacher also subsequently denies making the statement that the students believe the teacher made).

A: I am virtually 100% certain that that is not at all what happened, not least because Len spoke to me immediately after his 1 hour and 45 minute session with the students, and reported that he asked them to take the next class to share their perspectives, bring in members of their community, do whatever they wanted to present their views and turn this into a teaching moment for the entire class. That stuff about burden of proof is a crock, and you know that as well as I do. You also know the statements attributed to Len by the students are utterly preposterous. If you don't know that from knowing Len ([for more than 30 years] or for that matter, virtually any experienced law professor on our faculty, or for that matter, in the country), consult the statements of the other students who were there (and who feel their perceptions of what happened have been disregarded and marginalized by the law school administration you have been so eager to defend). Who are you kidding?

It is just possible that Len encouraged the students to act as lawyers in training, and did not treat them like children. For me, that is a mark of respect rather than the condescension or paternalism that have been running rampant around our halls. I'm all for being a caring and compassionate teacher. You've taken considerable delight in ridiculing me for that excess of "sensitivity" over the years. But in the end, we are our students' teachers, not their parents, and our job to teach them to become professional lawyers, not professional victims. Or do you disagree with that, as well?
>

>P: As a torts scholar you will recognize that I am speaking to basic issues of due care in instruction and the framework set forth is one that focuses on avoiding educational malpractice.

A: Quite so. The potential educational malpractice I have [been most concerned about] in recent weeks is quite in the other direction.

> P: However, because you would see such comments as a hostile and negative response to your sarcasm,

A: Quite the man to refer to sarcasm. Actually, I enjoy a good, meaty, substantive debate, and much prefer it to the sarcastic, underhanded comments you've been making about me to colleagues behind my back. If you want to take this public, be my guest. Do you have any objection to my doing so, by posting this exchange to my blog? Actually, I believe I have the right to do so regardless of your permission, but I'll wait a bit for your response first.

>P: I would never consider saying anything of this sort to you. [Peter]

A: Of course not. You've made it perfectly clear that you prefer saying it about me, to others. This is a considerable improvement on your part. Alan