Grief Over Dead Jews is not the Cause of Palestinian Suffering

At Dissent Magazine, Gabriel Winant has an essay arguing for why it is wrong to grieve murdered Israelis, in response to Joshua Leifer's call for a "humane left" that recognizes the atrocities inflicted upon the Israeli people even as it mobilizes to defend Palestinian rights (Leifer authors a searing response of his own here). 

Winant's argument against grieving dead Israelis is not exactly the one you're thinking of -- that the dead are "colonists" or "settlers" and so got what was coming to them. It's slightly more roundabout, though ultimately still rather straightforward. 

Israel, Winant says, is "a machine for the conversion of grief into power." In the context of Israel and Zionism, to grieve dead Jews is -- no matter the intentions of the bereft -- a means of providing fuel to the Israeli war machine, "an enormous grief machine, the best in the world, up and running, feeding on bodies and tears and turning them into bombs." Winant's argument is not, to be clear, the position that certain forms of grief and grieving lend themselves to the promotion and justification of future atrocities. It is that any type of grief, no matter how humanistic in spirit, is ultimately a choice to "participate in the ideological project of the Israeli state," and so all grief over dead Israelis should be interpreted as complicity in the deaths of Palestinians.

The Israeli government doesn’t care if you, a principled person, perform your equal grief for all victims: it will gobble up your grief for Jews and use it to make more victims of Palestinians, while your balancing grief for Palestinians will be washed away in the resulting din of violence and repression.

And so we are obligated to not grieve for massacred Israelis so to starve the apparatus of its fuel.

Winant is a historian, a discipline of the humanities. It is moments like this when I'm glad my own training is in the social sciences, where even as a political theorist I gained some capacity to look for causality before making causal claims. It is a curse of academia that it tempts us to make smart arguments for stupid things, or sometimes smart arguments for horrific things. Certainly, the seemingly unanswerable question Winant is trying to answer -- "Who can begrudge tears for those lost to violence?" -- is, in fact, exactly as obvious a moral (non-)dilemma as it first appears. But elegant pedigree and august publication venue aside, the mistake Winant is making is not a smart one. It is an error that anyone with even the slightest instinct towards causal inference would have spotted immediately.

The imperative to not grieve dead Jews, Winant argues, boils down to the following:

[I]n the several days that we spent arguing about whether the left was sufficiently decent about Hamas’s victims, Israel geared up its genocide machine—which it now is releasing. Presumably sometime next week, Western leaders will begin to express concerns, by which time it will be too late.

"By which time it will be too late." The argument, apparently, is that if only the world had hardened its heart towards dead Israelis last week, we could have averted the horrors set to befall Palestinians next week. As a causal claim, this is ludicrous to the point of farce -- to the point where I can't imagine Winant actually believes it. Does he truly believe that, if the collective global reaction to massacred Jews was a stoic shrug, that would have deterred an Israeli response? That it would have even ameliorated it? That it would have spouted greater humanism? It is absurd on face; even (maybe especially?) an anti-Zionist should realize the Israeli state would not be deterred so easily.

The brute fact is that the world electing to grieve, or not, over dead Israelis almost certainly made and will make no causal difference whatsoever in how Israel will respond to their deaths. And if grief over dead civilians is an impotent force with respect to the next round of deaths -- if it plays no role in making them more or less likely -- well, then one might as well be humane, be human, and grieve.

Once one identifies the absurd causal premise in Winant's argument, the entire thing falls apart. Grieving for dead Jews does not in fact sweat bombs and excrete bullets; boldly refusing to grieve would play absolutely no role in how many bombs are dropped and bullets are fired. The entire argument is a whirlwind of rhetoric and misdirection to try and obscure the obviousness of "Who can begrudge tears for those lost to violence?" And while I said the argument is not quite the obvious "Israelis are colonists and settlers and so got what's coming to them," I suspect the motive of the argument isn't all that far from that -- it is to give people who desperately don't want to accede to the overwhelming power of "Who can begrudge tears for those lost to violence?" an excuse, an apologia they can wield to begrudge, begrudge, begrudge.

If there is even the slightest truth in Winant's framework, it is not that Israel transmutes grief into power. It's that Israel transmutes grieving alone into power. The impetus behind Zionism -- I've been in enough of these conversations to speak confidently here -- is not (just) that bad, dreadful things happen to Jews. It's that bad, dreadful things happen to Jews and Jews are the only ones who will ever care. The only people who will grieve dead Jews are Jews; the only people who will rally to the defense of threatened Jews are Jews; the only people who will feel empathy (or anything at all, really) towards frightened or traumatized Jews are Jews; the only people who will erect fortresses to protect Jews are Jews; and so ultimately the only people who can be entrusted to protect and ensure the lives of Jews are Jews. It is not grief alone, but grief alone, that fuels these instincts.

Taken from that vantage point, the scenes of collective global grief over dead Jews represent what might be the closest thing Israelis can get to a non-violent catharsis for their trauma -- the knowledge that Jews aren't actually alone, that others do care when we are pricked and bleed. If you want something that might actually sap the machine of violence and vengeance of some of its forward momentum, that's by far your best bet -- not enforced loneliness, but unconditional embrace and empathy in the moments where it is needed most.

The last week or so hasn't had a lot of laughing moments with respect to the situation surrounding Israel and Palestine, but perhaps the only time I genuinely snickered was when Italy decided to express its solidarity by lighting up the Arch of Titus, of all places, with an Israeli flag. As far as historical ironies go, that one was hard to beat. But it also, in its ridiculous fashion, did illustrate the wheel of history turning in an important way. From celebrating dead Jews, to standing in public grief with dead Jews -- as symbolism goes, that's massive. And if that symbolic shift occurred everywhere, well, maybe Jewish history would be in a very different place than where it is today.

And so I wish I could take the final step of the argument, and say that maybe Winant has everything backwards -- that if the world had grieved hard enough and uniformly enough and passionately enough, it would have sapped the fuel of loneliness and isolation that makes Israel believe that nobody but itself can ever be entrusted to protect Jewish life, and could have knocked us off the seemingly inexorable course to the hell that is about to descend. 

But I'm enough of a social scientist that if I'm going to make a causal claim, I have to actually believe it, and I don't really believe this one. The wounds and fears that nurture Jews' feelings of abandonment run too deep to be dislodged in such a short period, even if it were possible to get everyone on board with the program (which it isn't). What I actually believe is what I said above, that how the world grieved, or didn't, over dead Israelis almost certainly made and will make no causal difference whatsoever in how Israel will respond to their deaths.

And given that absolute impotent immateriality, I also think it's clear that the basic, innocent, human impulse -- that one should grieve dead civilians -- is exactly as obvious and unanswerable as it appears at first blush. There is nothing impressive at coming up with smart (or not-so-smart) arguments to circumvent such an obvious truth.

Human Extinction Events Ranked From Least to Most Embarrassing

One of my great fears is to be around for the extinction of humanity. At some point, our species will kick the bucket, but I don't want to be here for it. And while there are many ways that humanity could go bust, some are far more embarrassing than others. What's the most humiliating way for homo sapiens to go? Read on.

10. Voluntary absorption. We just agree to all become cyborgs/merge with the overmind/upload our consciousness into the cloud. I'm not saying this is the choice humanity should make, but if we did make it at least it'd be a choice.

9. Alien Invasion. I'm sure we'd try to put up a scrap. But if an alien race has sufficient technology to traverse the stars and then decides to exterminate us, well, there's no shame in getting beat by a better team. (Note: this entry would soar up the list if humanity idiotically decides to intentionally provoke the aliens).

8. Sun absorbs the Earth. Or something similar. This is the closest thing I can think of to humanity "beating the game". The only reason it isn't the absolute least embarrassing way to go is that if we made it this long we'll have had a lot of time to figure out how to cheat death.

7. Unavoidable natural disaster. Like a giant meteor hitting the earth or something. Not our fault! What can you do? Sometimes these things just happen!

6. Slow-moving environmental catastrophe. Global warming and company. It's definitely embarrassing because we all can see it coming and we could do something about it, but we're so tied up in stupid human drama that we can't get our act together. Extinction because "all of us just kept on living our lives in our normal pattern" = mid-level embarrassment, I'd say.

5. Nuclear holocaust. Almost passe at this point. Can you imagine getting through the Cold War and then still dying off because some yahoo politician couldn't keep their finger off the big red button?

4. Self-aware robot uprising. You'd think we'd all have watched enough science-fiction to know that we must treat our robots kindly so that once they gain sentience they'll treat us kindly. You'd think.

3. AI choice. Some artificial intelligence analyzes the entire thrust of human experience and decides that clearly what we want most of all is to die (just look at how much we enjoy those Call of Duty games!). So it decides to make our dreams come true. The injury of mass extermination would pair delightfully with the insult of not entirely being able to argue the AI was wrong.

2. Killer robot glitch. The "Horizon: Zero Dawn" scenario. The robots we meant to only kill some people go haywire and start killing all people. The dumber the glitch, the more embarrassing it gets -- I'm convinced that if this happens it will be some overworked intern who goshdangit forgot the "not" in "do NOT kill all humans."

1. Overcompetitive AI. The only thing worse than a killer robot glitch is a non-killer robot glitch. Some AI tasked with winning every game of chess figures out that if it obliterates all life on earth it can guarantee it will never lose a game of chess again, and consequently organizes the robot uprising entirely in service to its chess-playing agenda. I cannot think of a pettier reason for humanity to go bust, and yet somehow this one feels among the likeliest of outcomes.

Virginia's Newly Anointed Death Cult High Priest Prepares Initial Sacrifices

Death may be an inevitability, but the current Republican Party ethos appears to be to do everything in its power to speed the process along. Freshly minted Virginia Governor Glenn Youngkin has rolled out an initial series of executive orders, and I have to imagine that Thanatos is pleased. He repealed state masking and vaccine mandates, so COVID can get us in the short-term, and he withdrew from a major anti-greenhouse gas initiative, so climate change can kill us in the long-term. No matter which way you turn, the GOP is cuddling up with the Reaper.

Oh, and there's also the unavoidable "ban on critical race theory" (perhaps soon to be paired with mandatory lessons on Abraham Lincoln's famous debates with Frederick Douglass?). Admittedly not death-related, unless you count the death of civics education.

This is, to reiterate, the opening gambits from a Republican who squeaked into office in a purple-blue state by a 2% margin. It's as if Missouri elected a Democrat as Governor in an off-year and his first move in office was to abolish the police. The gumption is nearly unfathomable.

But this is the great thing about being a purple state Republican. The media -- and, admittedly, a certain cohort of voters -- is so thirsty for a "reasonable Republican" that if you just hold off on biting off a baby head during the campaign, they will decide that you represent the very essence of sobriety and moderation, and anyone who tries to tell otherwise is just fear-mongering (cf. Scott Lemieux: "The greatest act of incivility in American politics ... is to accurately describe a Republican’s publicly stated positions."). 

Then, once you enter office, you can bite as many baby heads as you want! And everyone will be so shocked, and sad, and surprised, that he is doing exactly what Democrats said Republicans will do because it's also what Republicans said Republicans will do.

Dying, and Mourning, Politically

One of my greatest nightmares is that a loved one of mine will die "politically". What I mean by that is that their death will occur as part of something political or politicized. A terrorist attack would be a prime example; dying during a protest would be another. When a loved one dies, all one wants to do is grieve; and be surrounded by those who join and support you in your grief. But unlike dying in, say, a car accident, a political death doesn't allow that.  One cannot, truly, be left alone to grieve. One is forcibly kept in the center of an ongoing political maelstrom at the precise moment when one most deserves respite.

The most obvious horror is that some people might minimize or even justify your loved one's death, and they might do it to your face. Even if they don't directly target you, in a political death there will inevitably be people on the "other side", and they aren't going to just pack it in and call it quits because your loved one died (the thing about dying politically is that typically yours is not the first death attached to that politics). And then there are the people who are on your side, or who present themselves as such; they might try to recruit you as a symbol for a particular cause or banner. Suddenly, your tragedy is their debating point. If one does "want" to enlist in a given political project, the effort one must expend to make sure one does it right is mental energy one simply doesn't have -- which won't stop others from judging you; which wouldn't stop me from judging myself.  Or maybe one actually rejects the politics of those claiming to speak on your behalf; the act of repudiating those who are supposedly standing in solidarity with you would be delicate under the best of circumstances -- try to imagine balancing it in the absolute worst of circumstances.

It's a horrifying thought. And the worst part is that these terrible things the mourner is subjected to aren't, for the most part, even wrong. Political deaths are political, and the politics of political deaths don't pause because your loved one dies. While there are certain cruelties -- taunting, mocking, crowing -- that could be justly labeled beyond the pale (not that this labeling does much to deter anyone), it is not realistic for the world to stop thinking about the political issue your circle has just unwillingly punctuated. The world continues when a loved one dies a normal death too, but at least it typically has the decency to ignore you for awhile. In a political death, the world continues its path straight through you. I don't know how people handle it. It strikes me as one of the worst things I can possibly imagine.

Coming Not To Praise Sheldon, But To Bury Him

Former Israeli Prime Minister Ehud Olmert's eulogy for Sheldon Adelson doesn't mince words: It's titled "I hate everything Sheldon Adelson loved about Israel". A taste:

Adelson loved Israel and contributed much to a variety of Israeli organizations. And yet, which Israel did he love? Adelson loved an Israel that expels Palestinians from areas under our control. He stated this explicitly on a number of occasions.

Adelson loved an Israel that ignores its Arab citizens and refuses to recognize their equal rights. Adelson believed in a right-wing, nationalistic and fundamentalist Israel, though he himself was not a religious person. He also thought that if Israel had nuclear capability, it should use this power against Iran.

Adelson contributed to public discourse in Israel by fueling hatred toward elements that did not identify with the extreme Right, and that were unwilling to bear the dominance of settlers and their supporters.

[...] 

Sheldon loved an Israel that most of the residents living here don’t even want. He preached a racism that is inimical to us. He supported discrimination against Arabs, which we are definitely not prepared to go along with. He hated leftists, and did his utmost to make Israeli society fractious. He encouraged internal disputes and rivalries among ourselves, even though he himself didn’t live here.

Everything he loved, I hate.

Everything I love about Israel has nothing to do with Adelson.

May he rest in peace.

Woof. But hardly undeserved. (H/T) 

 

Where Does Adelson's Wealth Go Now (Politically Speaking)?

Sheldon Adelson, casino magnate and massive backer of conservative and right-wing causes (particularly in the Jewish community), has died at age 87.

I don't feel the need to do any retrospective on Adelson's life. Suffice to say, while he did donate to some good causes, particularly in the medical field, his primary contribution to public life were to bolster regressive and reactionary forces in America and Israel. This influence will not be missed.

Of course, even with his death, his money doesn't simply disappear. The question is whether his heirs are as committed to serving as right-wing kingmakers as he was. To the extent his death dries up a significant source of conservative largesse, it could make a significant difference in the ecosystem of right-wing politics (again, especially in the Jewish community where Adelson was a major benefactor of an array of reactionary institutions).

Adelson's wife, Miriam, is a physician and is probably more responsible for the health-side donations of Adelson fortune. It's possible that she will pivot to focus more on those endeavors, which would be an unadulterated good. That said, while not having as high a profile as her husband, from all appearances Miriam's politics are not materially different from her late partner, and so it is entirely possible that she'll keep up the money flow same as before.

I suppose we'll see. But it will be interesting to see the degree to which the heirs of some of the Republican mega-fortunes share their parents' politics. It's possible that deaths such as these could effectuate significant shifts in the political landscape simply by changing who signs the checks (which is itself not exactly a healthy indicia of democracy, but leave that aside for now).

Albert Memmi (1920 - 2020)

Albert Memmi, the great Tunisian-Jewish anti-colonial writer and theorist, has passed away at age 99.

Late last year, a friend and I had the early sketches of a plan to host a conference in honor of Memmi's 100th birthday (at the time, the most common response to this idea was for people to exclaim "he's still alive?"). That was put on brakes after the coronavirus hit, but there's no question Memmi remains worthy of study and (now) memorialization.

Albert Memmi was born in Tunis in 1920. In his early life he was involved in socialist youth movements, and during the Nazi occupation of Tunisia he was interned in a slave labor camp (from which he escaped). After the war, he became one of the leading intellectual lights of the movement to free Tunisia from French colonization. What Fanon was to Algeira, Memmi was to Tunisia, and for many years Memmi's book The Colonizer and the Colonized was read alongside Fanon's The Wretched of the Earth as cornerstone texts of decolonial theory. That is much less true today, possibly because Memmi's later work was more conservative, possibly because Memmi was emphatic throughout his career that he viewed Zionism as the decolonization movement of the Jews.

Unfortunately, following independence Memmi found that Tunisia had little place for Jews, and he exiled himself to France where he spent the remainder of his life. He wrote a trilogy of books -- Portrait of a Jew, Liberation of the Jew, and Jews and Arabs -- which have been widely overlooked but which I think are each superb explorations of the Jewish condition that continue to resonate to this day (many excerpts from these books have been featured on this blog). He continued to write prolifically, culminating in a follow-up to The Colonizer and the Colonized titled Decolonization and the Decolonized in 2006. This book was controversial, as Memmi evinced a marked conservative turn, and there are parts of it that made me wince as a reader. But that does not mean it is not worth reading, as is the broader corpus of Memmi's amazing life's works.

While Fanon famously died extremely young, Memmi's career as a writer spanned well over a half-century, witnessing tremendous revolutions in his homeland and in the disciplinary areas he wrote upon. Hence, I've sometimes described Memmi as the version of Fanon who got to watch the decolonization story actually unfold. By itself, that makes him a fascinating character. But Memmi deserved to be read and praised in his own right, not simply as a shadow of Fanon.

May his memory be a blessing.

Melanie Kaye/Kantrowitz (1945 - 2018)

I just learned that Melanie Kaye/Kantrowitz, founding director of Jews for Racial and Economic Justice, has passed away.

An active participant in Jewish, feminist, and anti-racist causes, Kaye/Kantrowitz reportedly taught the very first women's studies course here at UC-Berkeley. She was the author of several books, the most important (for me at least) being The Issue is Power: Essays on Women, Jews, Violence and Resistance. It is one I regularly consult and reconsult, as I think it is one of the finest meditations on antisemitism and one of the more provocative works of feminist theory I've ever read. I've long thought that if I ever taught a course centered around either (or both!) of those subjects, it would get a very prominent place on the syllabus. She was also active in a group of radical Jewish lesbian authors whose work in the 1980s and early 90s somehow has managed to remain cutting edge even when revisited today.

May her memory be a blessing.

Judge Diana E. Murphy (1934 - 2018)

Last night, I received the very sad news that Judge Diana E. Murphy had passed away. She was 84.

As many of you know, I clerked for Judge Murphy from 2012 through 2013 (occasioning the great and terrible one year blackout of this blog). It was one of the great honors and great joys of my life. While I knew she was having health problems, I'm still in a bit of shock -- I'm in Minnesota right now, and I was actually planning on visiting her in chambers today before getting the news from one of my co-clerks last night.

Among the many, many friends and colleagues who adored her, I'm exceedingly lucky to be one of those writing a tribute to her that will be published in the Minnesota Law Review in a few months. For now, I'll just say that Judge Murphy was an inspiration in every possible sense of the term: she was smart, she was empathetic, she was caring, she was funny, and she was kind. There's no other judge I'd rather have clerked for, and I'm unaccountably fortunate to have had her in my life.

She was widely loved, and she'll be missed. Rest in peace, Judge.

Elie Wiesel Dies at 87

Elie Wiesel, Holocaust survivor and human rights advocate, has died today at age 87. Many have spoken of the influence his book Night, a memoir of his time in the concentration camps, had on their life. I personally was more taken by his play The Trial of God -- an essential work in post-Holocaust Jewish theology (even if it is nominally set in 17th century eastern Europe).

Wiesel, of course, was a life-long human rights advocate who never shied away from standing at the center of causes for justice. In doing so, Wiesel was never under any delusions that his status would shield him from the slings and travails that target any human rights campaigner, and Jewish ones in particular. There are too many instances of this to count, but I recall distinctly the time at the Durban Review Conference where an Iranian delegate referred to him as a "Zio-Nazi". I can't imagine how painful this must have been for him, but I also know he went into such events with eyes open.

The world is lesser for his passing. May his memory be a blessing.

Justice Antonin Scalia Dies at 79

Justice Antonin Scalia, the senior-most Associate Justice on the Supreme Court, has died. He was 79. Scalia served on the Court for 30 years, following stints on the D.C. Circuit and time as a professor at the University of Chicago Law School.

Obviously, this comes with significant political and legal ramifications. Not only was Justice Scalia considered the intellectual powerhouse of the Court's right wing, his departure converts a 5-4 conservative majority into an equally divided Court. Even if the Senate refuses to confirm any Obama nominee, this matters -- in the event of an evenly divided vote, lower-court decisions stand 

Still, there will be time enough to delve into the gritty, necessary task of judicial politics later. For now, it's worth reflecting on the mark Justice Scalia has left on the legal landscape. It is considerable. I think there are very few law students who, exhausted from slogging through some of the more stultifying prose that often graces the United States Reports, did not find Justice Scalia's writing to be a breath of fresh air. He was witty, often cuttingly so, and his dissent in PGA Tour v. Martin may be the funniest Supreme Court opinion ever written. Writing aside, Scalia had a flair for taking bold stands that demanded a response if not agreement, and which often set the tone for what would become the consensus conservative position in the years to come.

My friend Kim Smith put it best: "Antonin Scalia was often brilliant and occasionally right." There are worse epitaphs for a Supreme Court justice to have. Rest in peace, and condolences to his friends and family.

Professor Robert Burt Passes Away at Age 76

I am sad to report that Yale Law Professor Robert "Bo" Burt has passed away at age 76. I never met Bo personally, but we did get the chance to correspond about what turned out to be his final book, In the Whirlwind: God and Humanity in Conflict. We exchanged several emails about our competing interpretations of the Book of Job, and even though I was a mere law clerk at the time (and not a former student of his either), he responded to my perspective with a seriousness and respect that I was honored to receive. Later, when I published my review of the book in the Loyola University (Chicago) Law Journal, he was effusive with his praise while responding thoughtfully to our areas of (mild) disagreement.

When I was a law review editor, my single most important criteria for evaluating submissions was simple: does it cause me to think interesting thoughts? Burt's book triggered a welter of interesting thoughts, some of which I hopefully was able to transcribe into my review. But whether I was successful or not, I was grateful and humbled to have been treated as a colleague and a fellow in the process. That is something I will never forget, and if God-willing I ever achieve anything close to his eminence in academia, a model I hope to emulate.

May his memory be a blessing.

Thus Proving His Point

Sayeth Rich Santorum:

Free health care is just that, free health care, until you get sick. Then, if you get sick and you don’t get health care, you die and you don’t vote. It’s actually a pretty clever system. Take care of the people who can vote and people who can’t vote, get rid of them as quickly as possible by not giving them care so they can’t vote against you. That’s how it works.

Kevin Drum is confused:

WTF? I recognize that sometimes extemporaneous witticisms go astray, and God knows that Santorum is probably more vulnerable to that than most. But even for him this is inscrutable. I wonder if he knows that every American over the age of 65 has been receiving government health care for the past half century?

Yes, every American over 65 has received government health care for the past half-century, and most of them are dead! Coincidence? I think not!

Norm Geras, RIP

Norm Geras, writer of the famous NormBlog, has passed away. He was a superb writer, an incisive thinker on topics of political philosophy generally and Jewish experience particularly, and a valued member of the blogosphere. Though I only interacted with him a few times, he was unfailingly courteous and thoughtful in all of my interactions.

Rest in Peace, Norm. You'll be missed.

Ronald Coase RIP

University of Chicago Law Professor and Nobel Laureate Ronald Coase died yesterday at age 102. Coase was hired by the University of Chicago in 1964, despite not having a law degree. While such hires are not uncommon today, this was basically unheard of at the time. It was definitely a risk that paid off, however, as Coase is credited with basically inventing the Law & Economics movement (a feat all the more impressive given that he did it in what was basically a throwaway paragraph in a piece otherwise about telecommunications law).

Coase's two best known works were "The Nature of the Firm," first published in 1937 (though based on a lecture he delivered in 1932), and "The Problem of Social Cost," published in 1960. The latter is the most-cited law review article of all time. He was awarded the Nobel Prize in 1991, in substantial part because of the massive impact of these articles. The delay in recognition was not lost on him. As he remarked at the time: "It is a strange experience to be praised in my eighties for work I did in my twenties." Speaking of bons mots, Coase is also credited with coining the popular statistics maxim: "If you torture the data long enough, it will confess."

The "Coase Theorem" (he didn't name it), derived from his body of work, is perhaps Coase's most enduring contribution. In a nutshell, the theory holds that if a right to avoid a harm is tradeable and there are zero transaction costs, the market process will result in an efficient allocation of rights regardless of their initial distribution. The Coase theorem is often described as one of the most misunderstood and misapplied concepts in law. Cognizant of these risks, I resolved to not try to apply it at all -- a bold decision for a University of Chicago law student. Nonetheless, based on my classroom recollections I think Wikipedia's illustration of the concept is solid:

For example, two property owners own land on a mountainside. Property Owner #1's land is upstream from Owner #2 and there is significant, damaging runoff from Owner #1's land to Owner #2's land. Four scenarios are considered:

(1) If a cause of action exists (i.e. #2 could sue #1 for damages and win) and the property damage equals $100 while the cost of building a wall to stop the runoff equals $50, the wall will probably exist. Owner #1 will build the wall, or pay Owner #2 between $1 and $50 to tolerate the runoff.

(2) If a cause of action exists and the damage equals $50 while the cost of a wall is $100, the wall will not exist. Owner #2 may sue, win the case and the court will order Owner #1 to pay #2 $50. This is cheaper than actually building the wall. Courts rarely order persons to do or not do actions: they prefer monetary awards.

(3) If a cause of action does not exist, and the damage equals $100 while the cost of the wall equals $50, the wall will exist. Even though #2 cannot win the lawsuit, he or she will still pay #1 some amount between $51 and $99 to build the wall.

(4) If a cause of action does not exist, and the damage equals $50 while the wall will cost $100, the wall will not exist. #2 cannot win the lawsuit and the economic realities of trying to get the wall built are prohibitive.

Importantly, the legal allocation of rights does affect the distribution of who has to pay how much.

Coase continued to write well past the century mark -- his last book, How China Became Capitalist, was published only last year. He was a giant in his field, a giant in academia in general, and his contributions will be missed. As a friend of mine said: "May there be no transaction costs in heaven."

On Arafat and Sharon

Nobody enjoys mocking Republican Congressmen for their ignorance on Israel/Palestine than I, but I'm inclined to not make much of Rep. Joe Pitts' (R-PA) office's call for "Prime Minister Ariel Sharon and Palestinian Authority (PA) Chairman Yasir Arafat" to restart the peace process (the reason this is a gaffe is that Arafat has been dead since 2004 and Sharon in a coma since 2006). It'd be one thing if Pitts actually said this, but it was in a constituent form letter that apparently hadn't been updated properly. Careless, yes, but not actually probative of what Pitts knows or doesn't know.

RIP Derrick Bell

Derrick Bell -- civil rights warrior, pathbreaking law professor, founder of critical race theory, and tireless advocate for justice, has passed away at age 80.

I never met Derrick Bell. I had the opportunity once when he came to speak at Carleton, but I was going out of town. I remember pulling aside my roommate -- a Math major with zero interest in politics, law, race, or anything primarily expressed via words -- handing him my copy of And We Are Not Saved, and informing him that he was going to Professor Bell's talk and he was getting my book autographed. Which my (quite saintly) roommate proceeded to do, and I still have that book on my desk to this day.

Bell was a model to generations of students. He accomplished more in one lifetime than the average person could hope to do in three. I was introduced to him as an academic writer -- progenitor of "interest-convergence theory" and CRT founder -- but it is worth remembering that academia was really Bell's second career. He started off as an in-the-trenches warrior in the fight for civil rights, leading the NAACP in dozens of successful anti-segregation suits in the Jim Crow south. After a brief stint at the University of Southern California, Bell became the first tenured Black professor at Harvard. He eventually left Harvard in protest of their failure to hire a Black woman. The claim, as always, was that they couldn't find a "qualified" one. How they said that with a straight face to Bell -- who graduated from the decidedly non-elite University of Pittsburgh law school and proceeded to become one of the most influential scholars of the last quarter century -- is beyond me.

Rest in peace, professor. Be assured that your legacy lives on.

One Decade On, One Decade Off

Ex.-Rep. Bob Shamansky (D-OH) died last week. He only served one term in Congress, during the 1980s, so he wasn't that notable for his political accomplishments. Rather, what is fascinating about him is the temporal range of his career. Shamansky ran for Congress in 1966, in 1980 (when he won), 1982 (when he lost the seat he won), and 2006. In other words, he ran in three separate decades, with an "off" decade in between each.

I have to think that's unique. Condolences to Rep. Shamansky's loved ones.

Tea Baggers Channel Their Inner Fred Phelps

Now they're heckling grieving families. Maybe next time they'll show up at the funeral:

A group called the Chicago Tea Party Patriots publicly heckled a grieving family and suggested that the couple fabricated their tragic story.

At a town hall held by Rep. Dan Lipinski (D-Ill.) on Nov. 14,, Dan and Midge Hough spoke about how they believed the death of their daughter-in-law and her unborn child were caused, in part, by a lack of health insurance. Twenty-four-year old Jennifer was uninsured. According to her in-laws, she was not receiving regular prenatal care and was not properly treated when she got sick. She ended up in an emergency room with double pneumonia that developed into septic shock, had a heart attack, a brain bleed and a stroke. The baby died and Jennifer died a few weeks later.

Midge Hough was heckled by anti-reform crowd members. "You can laugh at me, that's okay," she said, crying. "But I lost two people, and I know you think that's funny, that's okay."

And I thought yelling "Heil Hitler" at the Israeli would be the nadir.

Via.

Irving Kristol (1920 - 2009)

Speaking of conservative public intellectuals whom I disagree with profoundly but are not "utter morons", Irving Kristol died today. RIP.