July 17, 2014
More on a controversial legal opinion about Israel's options in Gaza: Professor Bell responds and corrects the record (UPDATED: Prof. Enoch replies)
Avi Bell (Bar-Ilan & San Diego) writes:
I saw your posting on my short paper on Israel’s legal duties to supply electricity to the Gaza Strip.
I understand that you have been in contact with David Enoch, who may not have fully appraised you of the facts.
I have written about the legal subject several times in past years: here http://jcpa.org/article/is-israel-bound-by-international-law-to-supply-utilities-goods-and-services-to-gaza/ and here http://kohelet.org.il/uploads/file/Israel%20May%20Stop%20%20Supplying%20Water%20and%20%20Electricity%20to%20Gaza%20-%20a%20Legal%20Opinion%20by%20Prof_%20Avi%20Bell.pdf, for example.
None of the material I have written on the subject is classified, and it has always been open to all to read, and reflective of my opinion of the law.
Several days ago, an article appeared in Haaretz written by a reporter who had not contacted me that incorrectly reported that I had “authorized” steps by Israel in a report prepared for a classified Knesset committee on the subject (apparently the English translation of the article dropped the claim that the work was classified). I have not produced a classified report. I have no position in the Israeli government allowing me to authorize any steps; I work for the state of Israel only in the sense that I am a faculty member of a state school. I do not have the security classification to participate in classified Knesset committee hearings. I did not prepare any writing for a committee hearing on the subject. In fact, I did not know, and still do not know if there ever was a Knesset committee hearing on the subject, or if one was even planned.
I found out about the newspaper article by receiving a carbon copy of a posting David Enoch made in a Hebrew University listserv to which I have no access as I am not a member. In the posting, David criticized me for the content of the “classified report” (apparently, the reporter was referring to the second of the above short pieces) and, in the last part of his posting, addressed to me directly, demanded that I deny the content of the newspaper article (about which I had not known until receiving the copy from David), lest he be forced to respond, creating unspecified consequences in the international academic legal community.
I invited David several times to have a substantive discussion about the piece in a forum which was open to us, without the threats. Repeatedly, he did not assent. All our mails were addressed to each other and the listserv. After four rounds, the moderator of the listserv informed me that none of my mails had been or would be posted on the listserv. I forwarded that email to David. I did not hear from him thereafter.
I did not refuse to forward David any of my writings, and I presume he is sufficiently skilled in Google to find them on his own in any event.
I believe that the legal opinions I wrote are more reflective of mainstream thinking on the subject than David appears to think, though, of course, in the best spirit of academic exchange, I think there’s nothing wrong with us disagreeing about what the law says. Likewise, I don't think there's anything wrong with out-of-the-mainstream views. I welcome feedback on my legal analysis, and have received a number of interesting comments so far, some in agreement, and some not....
As a matter of policy, I would suspect that most people – including most Israelis – would oppose a policy of Israel suddenly cutting off Israeli-supplied electricity and water to the Gaza Strip (which, if memory serves, is about two-thirds of the electricity and one sixth of the water used by Gaza). In fact, I think many of the policy arguments against cutting off electricity and water have merit, but that, of course, is not the question I addressed in either of the pieces. In fact, several weeks ago, I was asked in an interview whether I support cutting off electricity to Gaza, and I unequivocally answered that I would not recommend doing it. The fighting, and its adverse effects on innocent civilians, is nothing less than a tragedy, and I am chary of recommending too strongly courses of action that seem likely, no matter what is done, to result in harming the innocent.
You can do with this information as you wish. On the one hand, I think it is important to protect my good name from David’s attacks. On the other hand, I...don’t want to get into a mud-slinging fight. I did feel it important to convey to you an accurate picture of events because your opinion is valuable to me, and I hold you in highest possible esteem, as I’m sure you know.
UPDATE: Professor Enoch writes in response:
Avi Bell denies many things – not the important ones, though, and mostly not anything I said. I did not, for instance, say that his opinion was classified, or that he holds governmental office, or that he has authorized such drastic measures, or that he supports it as a matter of policy. What he doesn’t deny – what he seems proud of – is that he’s written, on different occasions, that cutting off the water and electricity supply to Gaza is permissible as a matter of international law.
This is not just a matter of the quality of the legal analysis (though it is that too, of course, as people in the field who have read the text and are working on a response assure me). Bell knows what he’s doing – he’s making this point in public settings, as the issue is being debated, with the clear aim of increasing the likelihood of Israel taking these measures. His 3-page opinion has now been posted online here (published on the website of a forum in which he is a member, and so, I suspect, with his permission), and here you can see an interview on Israeli television where he’s making the same claims again (starting around minute 26). All of this is in Hebrew, I’m afraid, so here are my translations of some of the main points:
- The title reads: “Israel is permitted to stop supplying power and water to the Gaza Strip”.
- “Electric power does not count as a basic humanitarian need and therefore Israel is permitted to stop supplying it.” And later on “There is good reason to believe that unlike food and medications, electricity does not count as a humanitarian need according to the laws of war, and that therefore Israel is not even under an obligation to allow third parties to supply electric power to the Gaza Strip.”
- “Still, several legal arguments have been voiced against the implementation of these sanctions by Israel. Subjecting them to scrutiny shows that none of them is valid.”
- “Although international law forbids ‘collective punishment’, the denial of access to water and electricity does not constitute such punishment.”
[English version here.]
I have no interest in conducting a civilized, academic discussion with Bell, or in reading his “scholarship” on the matter. Life’s too short (it tends to be shorter, by the way, with no water and electricity). What I have an interest in is exposing the moral horror (and with the help of experts in the field, the legal incompetence) of his relevant texts, thereby minimizing to the extent possible the chance of the implementation of the measures he deems permissible.
July 16, 2014
Controversy over an Israeli scholar's "legal opinion" justifying cutting off water and electricity to Gaza
David Enoch, the leading legal philosopher in Israel, who teaches on both the law and philosophy faculties at the Hebrew University of Jerusalem, writes:
Apparently, one of the measures considered by the Israeli government against the Hamas in Gaza is to cut off Israeli supply of water and electric power to Gaza (which pretty much consists of all of the supply of water and power to Gaza). Israeli government lawyers are apparently opposed to such measures.
Here ends the good news, though, because right-wing members of the Israeli Knesset have found the legal scholar who would write an opinion permitting such practices: Professor Avi Bell, from Bar Ilan University and the University of San Diego School of Law, has written such an opinion. (Though he refused to share it with me, I now have a copy, and I’ll be happy to share it with anyone who may be interested; I should say, though, that it’s in Hebrew). An item about this appeared in the daily Haaretz.
Israeli academics working in international humanitarian law are working, of course, on detailed documents refuting the legal technical claims made in Bell’s opinion. But I don’t think this is enough. I think that the legal academic community should do what it can to make it clear that there are consequences of such abuse of legal pseudo-scholarship and status in the service of gross immoralities – if nothing else, in terms of reputation.
UPDATE: Prof. Bell replies.
July 15, 2014
Shocking scandal: Blog Emperor Caron's "traffic" rankings...
...are BS. The main problem, unnoted by Prof. Hasen, is that they don't incorporate reader IQ, which would push InstaIgnorance, Outhouse and some of the others way down. (GoogleAnalytics hasn't figure that out yet, I'm told.) Nonetheless, we love Blog Emperor Caron because he figured out how to turn LawProf pontificating into dollars. Long live the Blog Emperor!
July 14, 2014
Rostron & Levit update their materials on submitting to law reviews
Professors Rostron & Levit asked me to share the following:
We just updated our charts about law journal submissions, expedites, and rankings from different sources for the Fall 2014 submission season covering the 203 main journals of each law school.
A couple of the highlight from this round of revisions are:
First, the chart now includes as much information as possible about what law reviews are not accepting submissions right now and what dates they say they'll resume accepting submissions. Most of this is not specific dates, because the journals tend to post only imprecise statements about how the journal is not currently accepting submissions but will start doing so at some point in August, at some time in the Spring 2015, or that the “submissions will close no later than September 15, and may close earlier, depending on acceptances,” etc.
Second, a couple of schools have had name changes (for instance, Phoenix Law Review is now Arizona Summit Law Review, and Texas Wesleyan Law Review is now Texas A&M Law Review), and the charts reflect these changes.
Third, there is a gradual increase in the number that are using Scholastica instead of ExpressO or accepting emails, but it is still a minority of the total: eight school list Scholastica as the exclusive method of submission, eighteen strongly prefer it, and seven more list it as one of the alternative acceptable avenues of submission.
The first chart contains information about each journal’s preferences about methods for submitting articles (e.g., e-mail, ExpressO, Scholastica, or regular mail), as well as special formatting requirements and how to request an expedited review. The second chart contains rankings information from U.S. News and World Report as well as data from Washington & Lee’s law review website.
Information for Submitting Articles to Law Reviews and Journals: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1019029
We’d welcome you to forward the link to anyone whom you think might find it useful.
We appreciate any feedback you might have.
All the best,
Allen and Nancy
Professor Allen Rostron
William R. Jacques Constitutional Law Scholar and Professor of Law
Professor Nancy Levit
Curators' and Edward D. Ellison Professor of Law
July 12, 2014
June 2014 LSAT takers down 9.1% from prior year
Blog Emperor Caron has the details. One pattern that seems to be emerging is that applicants are applying later in the season (recall that we actually saw a slight increase in February 2014 LSAT takers compared to the prior year). But a 9% decline in June takers almost surely guarantees that the law school teaching market this coming fall will be as bad as last year, since schools can't re-enter the market for new faculty without the ability to project enrollments into the future.
July 09, 2014
Case Western law professor Raymond Ku settles lawsuit...
July 07, 2014
Signs of the times: Boston-area law schools adjust
July 04, 2014
Intelligent write-up about Hobby Lobby issues...
...by journalist Dan Fisher at Forbes. I talked to him prior to the perplexing injunction on behalf of Wheaton, but he integrated that effectively. And Justice Sotomayor gets it exactly right in the bit he quotes: it really is preposterous on its face that anyone's free exercise of religion is burdened by a bit of paperwork (if only it were so--I might find God!). (The 7th Circuit disposed of the other argument in the Notre Dame case--Justice Sotomayor noted the relevant bit, as does Mr. Fisher.)
June 30, 2014
Shorter Hobby Lobby
Owners of a closely held corporation, like non-profit organizations, can be exempted from the requirement of paying for provision of at least four kinds of post-conception contraceptive drugs/devices as required by the Affordable Care Act if they have a sincere religious belief that life begins at conception, since the government can, in any case, just pay for these drugs/devices directly. Nothing in the decision should be taken to suggest that sincere religious belief in otherwise illegal discrimination, or in the wrongness of blood transfusions or vaccinations, will get similar accomodation.
Even shorter Hobby Lobby: conscientious objections count when they involve post-conception contraception, otherwise probably not.
Long version here.
UPDATE: And now some longer thoughts on Hobby Lobby. I preface this by noting that I think RFRA is a bad law, and Employment Division v. Smith got it basically right, but none of that is at issue. The Court's holding that closely held corporations are "persons" for purposes of RFRA isn't implausible, especially when, as here, the corporate entities were essentially family businesses, in both cases very Christian families who believe "sincerely" (as we are told repeatedly) that life begins at conception. (I do believe that people who hold sincere but pernicious false beliefs, such as that life begins at conception, should be encouraged to abandon those beliefs, but that also isn't at issue in this case!) I also agree with the Court that the costs of non-compliance with the ACA would be very substantial for those challenging the law. I also agree with the Court that the fact that the government has already established a simple procedure for non-profit organizations with religious objections to contraception to opt out (with the insurers bearing the costs, rather than the employees) is pretty overwhelming evidence that there are "less restrictive" alternatives to meeting what the Court concedes is a compelling governmental interest, namely, providing contraception to covered employees without additional cost to the employee. The least plausible part of the majority opinion is p. 36's argument that it is not for the Court to assess whether it is reasonable for the Hahns and the Greens (the family-owners of the corporations) to sincerely believe that paying for insurance that an employee might use to access medical services of which they disapprove; but as Justice Ginsburg points out in dissent (pp. 21-22), it is for the Court to assess whether, as a matter of law, there is actually a substantial burden on their religious beliefs. What if the Hahns and Greens have a sincere religious belief that the ACA burdens their free exercise rights under RFRA? The Court obviously isn't bound by that. The Court need not decide whether it is reasonable to believe that life begins at conception or that the "morning after" pill is akin to murder. But it is most definitely for the Court to decide whether those beliefs are burdened by paying for health insurance that an emplyoee might use to get a "morning after" pill.
Justice Ginsburg has perhaps been going to the opera too often with Justice Scalia, since her dissent begins on a note of rhetorical overkill worthy of Scalia! The majority decision is not broad; indeed, it is remarkably narrow, which was the point of my "shorter Hobby Lobby," above. (I was being a tad facetious, though, in saying it will only reach conscientious objections to post-conception contraceptives--though parts of the opinion read that way!) General Motors won't be challenging any part of RFRA based on this decision; closely held corporations run by Christian Scientists or Jehovah's Witnesses may bring suit, but they are going to lose on the evidence of Justice Alito's opinion. The biggest burden of today's decision falls on insurers, who will now be paying for the contraceptive coverage of a lot more employees than previously. And today's decision strongly suggests that the non-profit orgagnizations challenging the opt-out procedures are going to lose if it gets to the Supreme Court.
All that being said, I would have voted against the Hahns and Greens: I think it would have been better, and equally plausible, to simply hold that corporations are not "persons" for RFRA purposes; and it would have been far more plausible to deny that there was any substantial burden on the religiosu beliefs of the Hahns and Greens by requiring them to pay for health insurance that their employees might use for medical services of which their employers disapprove for religious reasons.
(Jonathan Adler [Case Western] points out that my "shorter Hobby Lobby" elides the fact that the ACA did not require contraception coverage directly, but only that HHS regulations specify covered services, and that it was these regluations that incorporated FDA-approved contraceptive drugs and devices. Had the ACA specifcally mandated contraceptive coverage, this would have opened the door, Prof. Adler suggests, for the government to argue that RFRA does not apply.)
CORRECTION: A health law attorney knowledgeable about these matters writes:
Good post on the Hobby Lobby decision, but one quick correction -- under the federal regs, insurers aren't directly on the hook for providing separate contraceptive coverage. They get "paid" for that coverage through the exchange funding mechanism -- basically, they get to deduct the coverage costs from their exchange fee (i.e., a percentage payment of the premiums for exchange plans, currently set at 3.5%). The exchanges are supposed to be self-sufficient by 2015, and it's my understanding that this isn't anticipated to be a problem. If that's wrong for some unexpected reason, CMS would just tweak the exchange fee.
MORE READING: Predictably there's a huge outpouring of commentary, most of it misleading (even by law professors). But two good assessments are those by Joey Fishkin and Sandy Levinson, both law professors at UT Austin (Levinson a former colleague, Fishkin after my time). Fishkin identifies what this case is really about (despite its very narrow holding) and Levinson comments on the rhetoric of Ginsburg's dissent.