international law and the law school curriculum

The customary talk about law schools being more "practical" having subsided a bit, a related topic has surfaced concerning international and/or comparative law in the first year, or its requirement later in law school. Eric Posner, who apparently teaches international law, has taken a negative view on the subject. Others have been more positive, although the general tone remains skeptical.

I think it depends a lot on what we are talking about. Traditional international law courses, with their emphasis on sovereign immunity, law of the sea, and other esoteric topics, make very good electives but perhaps not a required course. Many comparative law casebooks, which get overly focused on theoretical matters, are probably in the same category. (Try keeping students awake through a discussion of the differences between French and German code-writing and you'll see what I mean.)

But what if one tried a different approach, which integrated comparative law into the regular first-year curriculum? Instead of simply learning American approaches to tax or torts or contracts, what if one included in each course a brief unit on foreign approaches, with a small (say, one or two credit) umbrella course or seminar to make sure students had the basic comparative law vocabulary to do this successfully? Something like this already happens at McGill, which teaches both common and civil law in the first year; indeed, it is already happening in American law schools, all but a very few of which teach Model Acts or Restatements rather than the law of the state in which they happen to be located. We don't call this comparative law, because it's part of our larger Federal system, but in essence that's what it is.

A little historical research might be of interest here. The trend toward teaching national law, or comparing results in different (American) jurisdictions, is relatively recent; all but a few national law schools traditionally taught their own local law. I am willing to bet that, when the switch was being made, many traditionalists bemoaned the changes, arguing--like Posner today--that only a few elitists would be interested in the law outside their state borders. I think this was an understandable but ultimately a losing argument then, and I think the same thing now.

israel, the UN, and the gaza war

Richard Goldstone, the chief UN investigator, has predictably found that Israel (as well as Hamas) was guilty of significant atrocities in the last Gaza War. Predictably, not because Goldstone is biased or incompetent, as some have claimed, but rather because of institutional realities. Special prosecutors (investigators) nearly always find wrongdoing, if only to justify their existence: that Goldstone was working for the UN, and spoke primarily to Palestinian sources, pretty much guaranteed the rest. Israel is equally predictably attacking the report, with some Israelis and American supporters making the dubious claim that Goldstone is anti-Israel or a "self-hating Jew," whatever that might mean.

Having watched Israeli news coverage of the war, I have long believed that there was a disproportionate use of force by at least some Israeli commanders, and said so at the time. Still, it is hard to avoid a certain sympathy for the Israeli forces. Hamas having placed its launchers almost uniformly in populated areas--and having repeatedly attempted to lure the Israelis into booby-trapped civilian buildings--it would have taken a superhuman discipline for the Israelis not to have leveled the relevant targets, with whatever resulting casualties, instead. The report, which is written with the wisdom of hindsight, suggests that the commanders should have made a different tradeoff, presumably accepting (say) 10 of their own dead and wounded in order to avoid 50 or 100 dead Palestinians, depending on how the term "proportionate" is interpreted in this context. But any commander who did this would have been quickly relieved; American and British commanders in Iraq or Afghanistan have been considerably more trigger happy.

Still, these are factual points, which the Israelis would be able and willing to make if they conduct their own investigation, or (failing that) if they prepare a serious, point-by-point refutation of the Goldstone report. Instead, having failed to conduct a full-blown investigation, they are now compounding the propaganda defeat by making rather silly claims that Goldstone, who appears to be a Zionist and whose daughter speaks Hebrew, is somehow out to get them. A better strategy would be to present the situation that the Israeli commanders were up against and ask: would any other country, given the available options, have done differently?

Addendum: Israeli responses to the Goldstone report have been posted at the website of the Ministry of Foreign Affairs www.mfa.gov.il

is opposition to obama racist?

Former President Jimmy Carter, who sometimes seems more lively now than he did as President, has opened a loud shouting match with his suggestion that right-wing opposition to Obama is tinged with racism. Maureen Dowd in the Times took a similar position, suggesting that an implicit comma came at the end of Joe Wilson's "You lie,"followed by the word "boy." Republicans have expressed outrage and called it a diversion from real issues. Is it?

It's hard to deny that there's some racism on the American right . . . and everywhere else on the political spectrum. Signs like "stay away from our children," which greeted Obama's speech to public school students, seem hard to explain on other grounds. And it may not be a coincidence that Wilson comes from South Carolina, a center of Southern resistance since before 1860.

Yet a few facts suggest that the charge may be overstated. Consider:

1. In the last election about 43 percent of whites voted for Obama, including over 40 percent of white males, the first time that had happened since 1976. (By way of contrast, under 5 percent of black voters voted for John McCain). It's possible that there are two groups of white voters, one more tolerant and the other less so; or that an even larger number of whites would have voted for (say) Hillary Clinton if she were running. And Obama's white numbers, while higher than previous Democrats at a national level, appear to have been somewhat lower in southern and border states. Still, it seems odd that a country plagued by racism would give record votes to an African-American or mixed-race candidates, or that racial attitudes--which tend to change very slowly--would shift in a matter of a few months.

2. The arguments made against Obama--that he is socialist, European in orientation, outside the cultural mainstream--are nasty and sometimes childish. But they are not appreciably different from those made against George McGovern, Michael Dukakis, or Bill and Hillary Clinton, and (if polls are accurate) have if anything been less successful against him than his predecessors. Even the caricatures of Obama--signs depicting him as Hitler, The Joker, etc.--don't really have much to do with racial stereotypes, but are consistent with previous efforts to depict liberals as weird, foreign, or dictatorial going back to the 1950s. They're also not that different from caricatures of Bush, Nixon, and other Republicans, but that's another story.

3. It's true that the effort to demonize Obama has been faster, cruder, and better organized than those against Clinton and other liberals. But this is part of a general decline in civility and an increase in the number of partisan outlets rather than being attributable to his race. The effort to demonize Bush was similarly more extreme than similar efforts against Reagan and other Republicans (Nixon was disliked by so many people, for so many reasons, that he merits his own category).

I must add a personal note. I spend a lot of my time doing research on antisemitism, especially the fascist kind, which was not merely verbal but direct, physical, and ultimately lethal in millions of cases. One of the saddest things to me is the way cavalier charges of antisemitism or "self-hatred" (the equivalent charge against Jews) have taken much of the sting out of antisemitism as a concept, so that people who really do hate Jews often escape our attention. I would hate to see the same thing happen to racism in America--and yet I fear that it has. If someone isn't a racist, they shouldn't be accused. Even if they are, the accusation of racism is more likely to lock them in to existing behavior patterns than change them for the better. There has to be a better way.

Addendum: Obama himself has given an interview in which he expresses doubt that all or most opposition to him is based on race. That won't necessarily stop others from claiming it, though. Stay tuned.

"you lie"

Well a new low in civility at Obama's speech last night. It never looks good to call the President a liar, even worse when your neighbors are Blackberry-ing (personal? professional? video games?) during the same speech. Putting it in the present ("you lie") rather than the present progressive ("you're lying") tense, which might at least imply that he sometimes told the truth, makes it all the rawer.

Lost in the understandable condemnation of this outburst is the fact that the President, if not intentionally lying, said a lot of things that, well, strained credbility in his speech. Leading in this category is the repeated assertion that we will allow everyone to keep or improve their existing health benefits, extend the same benefits to numerous others, and it's won't cost us anything; or at least not so much as to add a single nickel to the Federal deficit over the next few decades. It's hard to believe that anyone believes this, especially since Obama has been continually vague about funding sources, and most of the ones he has supported have gone nowhere in Congress.

There was also some, um, very clever phrasing in the President's speech. For example, he said (in rough paraphrase) that "no Federal money" would fund abortions under his reform plan. But of course, most of the plan consists of incentives and/or requirements for private plans to cover additional people: even the so-called public option could be set up in such a way that, technically speaking, it was spending "private" rather than "public" funds. Much of this additional insurance likely would cover abortions, of which Obama is the staunchest defender ever to occupy the White House: hardly a great comfort to abortion opponents.

And Cong. Wilson wasn't the only person to call someone a liar, either. Obama effectively called all the Republicans the same thing, for raising "death panels" and other issues in the debate. But the death panels argument, as I've noted before, is simply an inelegant way of dramatizing the threat that health care reform will be paid for by reductions in senior coverage--hardly an aberrant idea, especially since Administration spokesman have been hinting at exactly that for as long as anyone can remember. That Obama wants to reduce only "wasteful" spending is hardly a comfort if you are part of the waste.

Perhaps Wilson should take some time to watch the House of Commons on C-Span during the next off-season. When Obama makes dubious claims, he can try disparaging hand motions or wait for question time, at which he can state that the President "lives in a fantasy world in which this member prefers not to enter," or words to that effect. Or if he is really peeved he can say what Prime Minister Begin once said, in English, in the Israeli Knesset: "The gentleman is a liar; the gentleman is a liar." As the British know, it's all in how you say it.

what obama should do

A lot of Republicans are having fun watching President Obama's slide in the polls, and especially his problems with health care. But the slide is not especially good news for the country, or even for the Republicans, who are still a good way from being ready to share power again. So, as a sort of public service, I am offering my advice to the President on what is going wrong and what he should do differently.

1. I think Obama needs to draw a line in the sand with respect to the health care proposal. It would be better for him to lose than to compromise what is obviously an important principle to him, i.e., universal or near-universal health care coverage including--if not a public option--something that accomplishes much the same thing. The issue is no longer the substance of his proposal but his own credibility. If his opponents can make him back down on his biggest domestic proposal, they will own him for the rest of his term.

2. Assuming that he gets at least some version of health care, I think he needs to slow down the flow of legislation considerably and focus on a few attainable goals, preferably things that are more bipartisan and less expensive in nature. He needs, in other words, to tack to the center rather aggressively. Legislation that appeared attuned to the ongoing economic crisis, like further reform of the housing or financial markets, would make a decent start. Cap and trade would be quixotic in this atmosphere.

3. (Most important) He needs to bring a senior counselor into the White House, like Clinton did with David Gergen or Reagan with Howard Baker, who will have credibility on Capitol Hill and free him to do the things--develop big initiatives and sell them to the broader public--that he does best. The current combination of an above-the-fray President and an aggressive but relatively narrow core of Chicago-based advisors is not sustainable in the long run. George Mitchell, who is not going to get a Middle East peace deal anyway, is one choice; Leon Panetta, who is probably sorry he took the CIA job, is another. Hillary Clinton is a desperation choice.

The good news for Obama is that his travails have come early; he has far too long to go to be considered a failure yet. But the next few weeks may determine whether he turns out more like Jimmy Carter (ineffective) or Bill Clinton (maddening but gets the job done). One of the most important tests of leadership is to recognize one's own limitations and compensate for them. We'll see if he does.