Monday, August 16, 2010

the "ground zero mosque"

The proposed mosque--actually, it's more of a cultural center--at or near the World Trade Center site presents a complicated issue. If I had been the lawyer for The Cordoba Project, I might well have advised them to seek a different site, or at least to explain themselves better to the public than they have done. And it may be that some sort of compromise is still possible.

Still, there is a certain kind of issue that--even if one would have preferred it never be posed--requires a clear-cut answer once it actually is. Whatever the political wisdom of the project, it is simply inadmissible to bar something on the grounds of religion, no matter how strongly felt the opposition may be. That the project is pretty clearly intended as a refutation of the mentality of the 9/11 bombers--Cordoba was a city in Spain noted for at least temporarily good relations between Jews, Christians, and Muslims--makes the case that much clearer. That doesn't mean opponents don't have a right to be heard, or that they should be called racists, or bigots, and so on; but only that their arguments should not trump religious freedom in this particular case.

The role of the ADL (Anti-Defamation League) in opposing the project strikes me as especially unfortunate. Does is not occur to Jewish groups that arguments made against Muslims--they are alien, they are violent, they pray to a god of fear rather than a god of love--are exactly those made against Jews in times past? All this kind of position will do is convince your average secular American that, as the expression goes, "they're all crazy"--Jews, Muslims, anyone in that part of the world; not a long-term winning hand.

Thursday, August 12, 2010

a woman's world?

There has been a spate of articles in the last year or so to the effect that women are taking over, men are yesterday's news, and so forth. Hanna Rosin's piece in the Atlantic, "The End of Men," pretty much sums up the genre. The theme extends to popular culture as well: a new hit movie, "Eat Pray Love," celebrates a woman who leaves her husband for travels to various countries whose name begins with "I," although in a subsequent book she remarries.

All of this is fine as entertainment, and it probably has some substance too. As a professor I find increasingly that my best students, together with many of the best faculty candidates, are women: this before even reaching the advantages that women have in personal relationships. Still, I think the "men are history" argument suffers from numerous logical lapses and inconsistencies, so that things are not nearly as bad--or good--as Rosin and others put it.

To wit:

1. The argument tends to be very selective in its use of statistics. Sure, more women than men attend college, and they tend to get better grades. But of the Fortune 500 companies, 485 or so have male CEOs, and the number is changing very slowly. It's possible that this is a time lag, and we will eventually see half or more big companies run by women: but at this rate it would take 200 or 300 years.

2. The argument tends to focus on aggregate figures, like the number of students or employees, rather than investigating who really holds power in an institution. In law schools, for example, half or more of the students, and probably half or more the new faculty--much more, if you count adjuncts and clinical faculty--are female. But on a recent list of the 50 most heavily "downloaded" scholars, nearly all 50 were men. Of course, there are other things that matter besides downloads, and it's possible that this too merely reflects a time lag rather than a permanent impairment. But it's hard to say that women run the law schools in any real way, and I suspect this pattern repeats itself in other areas.

3. The argument ignores the powerful reaction against feminism both within and (more importantly) outside the U.S. and other advanced countries. Part of this involves natural cycles of change and reaction; but it is also fueled by demographics. People and countries with more traditional allocations of gender responsibilities have, on the average, tended to produce more children than those who emphasize modern ideas of quality. (Elena Kagan has no children,while Sarah Palin--who is at least a very different kind of feminist--has five.) This pattern, repeated over several generations, is a problematic one for women's equality, or at very least casts doubt on the end-of-patriarchy theme.

One of the hardest things about predicting the future is distinguishing between short-term and long-term trends. It is possible, indeed probable, that at least some of the stumbling blocks above will prove temporary, and women will indeed proceed to full equality with--or superiority over--men. But it is surely a lot more complicated than popular culture would lead one to think. Which, I suppose, is why they call it popular culture.

Monday, August 09, 2010

the future of the law schools (2010 version)

Any time there is an economic crisis, you can be sure there will be a series of new efforts to reform the law schools. Some of them, like efforts to control tuition, involve the faculty in job placement, and orient the law schools toward skills training may actually be good ideas. Others, like the endless attempts to define one's self as an "elite" law school (and thereby exempt from the advice one offers to others) smack of rank opportunism. Consistent with human nature, most suggestions tend to be pretty much the same thing that the suggester would have said had there been no economic crisis, at all.

One of the less constructive suggestions is to eliminate or phase out tenure: something that is happening in stages, anyway, but that some (usually administrators) would like to hurry along. The tenure issue is typically argued in terms of free speech, which I think is its weakest defense. As any tenured professor knows, a school can make you pretty miserable if you express outlandish views, even with tenured status: and most people who open their mouths after getting tenure will probably have done so before it, anyway.

The bigger issue is one of time frames. I got tenure writing about statutory interpretation in the tax field, but eventually realized that most of what I had to say had been said before, and better, by others. So I expanded my interests, to cover international tax and (eventually) nontax comparative law: an effort in which I have invested many years but the payoff on which, when and if I ever succeed, is likely to be much higher than had I continued churning out more or less the same stuff I was doing before. I might have done this even if there were no tenure, but I would have been much less likely to try.

Aha, you say, that's the point: professors should strive to be productive and not waste years pursuing new areas that may or may not be fruitful. My counter is that it is precisely by taking risks that academics make new discoveries. Books and articles that incrementally advance preexisting ideas are, in the long run, more or less useless. By freeing proven scholars to take a longer time frame, the tenure system provides at least some chance to reverse the inevitable tendency toward repetition and mediocrity, and produce something of lasting value.

There is a particular irony in the pressure coming from administrators and other "moneyball" advocates to cut back on tenure. American business got in trouble precisely because of its short time-frame, which distinguishedit even from capitalism in other countries (Europe, Asia, etc.) Now the business types are trying to extend the very "grab what you can, eat what you kill" philosophy that nearly ruined the economy to the one area that they haven't reached yet. Somebody once said that "politics ain't beanbag." Academics isn't baseball either, and it would do us well to remember it.

Sunday, August 01, 2010

lovely wedding, wrong day

It was very nice to read about the Chelsea Clinton-Marc Mezvinsky wedding, especially since the groom was the son of my former congresswoman and the rabbi a friend-of-my-friends. Indeed, my wife and I have even stayed at the Beekman Arms, which appears to have figured somewhere in the wedding although I don't think it was held there. That Mezvinsky is proved of his Jewishness--he wore a tallit at the ceremony and has apparently been seen with Ms. Clinton at one or more Jewish services--is a nice bonus.

A bonus, but a rather mixed blessing. While it's nice that they took symbolic steps to reaffirm the Jewish (or half-Jewish) character of the event, unless she converts, any children born to the couple will not be Jewish under Jewish law. And while Rabbi Ponet, who is Reform, is legally permitted to participate in "mixed marriages," permitting a khuppa [wedding canopy] to commence during the Jewish Sabbath pretty much makes a mockery of the entire event, or at very least its Jewish character. That he did so with much of the country watching--if you Google the word "rabbi" today the first thing that comes up is "Rabbi James Ponet"--is especially galling.

The affair is interesting in terms of the current debate about Israeli conversion law, as well. Reform and Conservative rabbis have, understandably, been unhappy about proposals to increase Orthodox control over the conversion process. But if the nonorthodox rabbinate cannot follow basic Jewish law--if indeed they flout traditional religious principles in front of a national or international audience--why exactly should the Israelis, or anyone else, take them seriously?

Addendum: a number of people have informally commented that "it's none of our business" how other people get married. I think that arguably applies to the couple, but less so to the rabbi. The rabbi at Yale is a representative of the Jewish community whether or not he wants to be. Because of his actions tens of thousands of people now think that (i) it's perfectly acceptable for Jews to intermarry, (ii) it's equally acceptable to pick and choose whatever parts of Judaism happen to please you and the heck with the rest. That's everyone's business, I would think.