Brian Leiter's Law School Reports

Brian Leiter
University of Chicago Law School

A Member of the Law Professor Blogs Network

Thursday, 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 17, 2014 in Of Academic Interest | Permalink

Wednesday, 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 16, 2014 in Of Academic Interest | Permalink

Tuesday, July 15, 2014

Highly cited election law scholars

Now we know!  I suspect more than 25% of the cites to some of these folks are to non-voting rights scholarship, but I may be wrong.


July 15, 2014 in Faculty News, Rankings | Permalink

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 15, 2014 in Of Academic Interest, Rankings | Permalink

Monday, July 14, 2014

Rostron & Levit update their materials on submitting to law reviews

Professors Rostron & Levit asked me to share the following:

Dear Colleagues,

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.

Happy writing!

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 14, 2014 in Advice for Academic Job Seekers, Of Academic Interest | Permalink

Sunday, July 13, 2014

"Marx, Law, Ideology, Legal Positivism"

This draft is for a conference in the fall at UVA Law School on "Jurisprudence and History" organized by Charles Barzun and Daniel Priel; I may not revise it before then, but I will definitely revise it afterwards and before publication.


July 13, 2014 in Jurisprudence | Permalink

Saturday, 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 12, 2014 in Advice for Academic Job Seekers, Legal Profession, Of Academic Interest | Permalink

Wednesday, July 9, 2014

Case Western law professor Raymond Ku settles lawsuit...

Monday, July 7, 2014

Signs of the times: Boston-area law schools adjust

Sunday, July 6, 2014

Visiting Faculty at the Top Six Law Schools, 2014-15, 3rd Draft

As I've done in the past, I'm posting a list of the visiting professors (who hold university appointments elsewhere) at the top six law schools, the schools that are "top six" by almost all measures of faculty quality--which are also the schools that also typically have the most visiting professors on a regular basis. While many visiting stints are made with an eye to possible permanent appointment, not all are; some are so-called "podium" visits, which aim to fill an immediate teaching need at the school. By my calculation, for example, much less than 10% of the visits last year resulted in (or are in process of resulting in) offers of permanent employment--perhaps a slightly higher percentage of the non-podium visits resulted in such offers. Often visitors from local schools in the area are invited for podium visit purposes--though some "locals" may also be "look-see" visitors, i.e., under consideration for appointment. NYU also has a fair number of "enrichment" and "global" visitors, well-known senior folks who are keen to spend some time in New York, but who aren't necessarily interested in, or being considered for, lateral moves. (Columbia gets some of these folks too.) From the outside, of course, it's very hard to tell all these apart, so here, without further comment, are the visiting professors for 2014-15; please e-mail me about omissions or corrections (though I'm hopeful this is the final version).

Please note that not every visit, below, is for the entire academic year; indeed, my guess is at least half are not, meaning students can expect many of these faculty to *also* be teaching at their home institution. In the case of HLS, many of the visitors come in the Winter Term, i.e., just the month of January.

Please also note that this is supposed to be a list of visiting faculty who have gone through some kind of appointments process at the school at which they are visiting, whether a process for look-see visitors, "enrichment" visitors, or podium visitors.  (Not all schools use podium visitors--Chicago does not, for example.  But Harvard and NYU, among others, do.) These are supposed to be faculty who are teaching at the host school and who are being paid by the host school to teach.

Columbia Law School

John Brooks (Georgetown University)

Amichai Cohen (Ono Academic College)

Hanoch Dagan (Tel-Aviv University)

Yehonatan Givati (Hebrew University, Jerusalem)

Julie Goldscheid (City University of New York)

Sudhir Krishnaswamy (Azim Premji University)

Alice Ristroph (Seton Hall University)

Russell Robinson (University of California, Berkeley)

Wolfgang Schoen (Max-Lanck Institute)

Alex Stein (Cardozo Law School/Yeshiva University)

Guglielmo Verdirame (King's College, London)

Harvard Law School

Robert Anderson (University of Washington)

Noa Ben-Asher (Pace University)

Sergio Campos (University of Miami)

Daniela Caruso (Boston University)

Jennifer Chacon (University of California, Irvine)

Daniel Coquilette (Boston College)

Susan Crawford (Cardozo Law School/Yeshiva University)

Elizabeth Emens (Columbia University)

Mark Geistfeld (New York University)

John Golden (University of Texas, Austin)

Helen Hershkoff (New York University)

Scott Hershovitz (University of Michigan)

Bert Huang (Columbia University)

Sanford Levinson (University of Texas, Austin)

Catharine MacKinnon (University of Michigan)

James Salzman (Duke University)

David Skeel (University of Pennsylvania)

Sonja Starr (University of Michigan)

Jordan Steiker (University of Texas, Austin)

Michael Stein (College of William & Mary)

Chantal Thomas (Cornell University)

George Triantis (Stanford University)

Alain-Laurent Verbeke (University of Leuven)

Tess Wilkinson-Ryan (University of Pennsylvania)

New York University School of Law

Fareda Banda (School of Oriental and African Studies, University of London)

Eyal Benvenisti (Tel Aviv University Faculty of Law)

Charles Cameron (Princeton University)

Robert Cooter (University of California, Berkeley)

Graeme Dinwoodie (Oxford University)

Zev Eigen (Northwestern University)

John Gillespie  (Monash University)

Stefan Grundmann (Humboldt University, European University Institute)

Scott Hemphill (Columbia University)

Johanna Hey (University of Cologne)

Robert Inman (Wharton School, University of Pennsylvania)

Frederic Jenny (ESSEC Business School)

Michael McConnell (Stanford University)

Melissa Murray (University of California, Berkeley)

Stanford Law School

Ryan Bubb (New York University)

Ariela Gross (University of Southern California)

Marian Pargendler (Fundação Getulio Vargas School of Law, Sao Paulo)

Camille Gear Rich (University of Southern California)

Alan Sykes (New York University)

Chantal Thomas (Cornell University) 

Tess Wilkinson-Ryan (University of Pennsylvania)

University of Chicago Law School

Kelli Alces (Florida State University)

Corey Brettschneider (Brown University)

Stavros Gadinis (University of California, Berkeley)

George Geis (University of Virginia)

Alon Harel (Hebrew University, Jerusalem)

Douglas Levene (Peking University Transnational Law School)

Katerina Linos (University of California, Berkeley)

Ariel Porat (Tel-Aviv University)

Louis Michael Seidman (Georgetown University)

Robert Simpson (Monash University)

Pierre-Hugues Verdier (University of Virginia)

Yale Law School

Eyal Benvenisti (Tel-Aviv University)

Philip Bobbitt (Columbia University)

Steven Calabresi (Northwestern University)

Aaron Dhir (Osgoode Hall/York University, Toronto)

Zev Eigen (Northwestern University)

Emmanuel Gaillard (Sciences Po, Paris)

Moshe Halbertal (Hebrew University, Jerusalem; New York University)

Edward Janger (Brooklyn Law School)

Johanna Kalb (Loyola University, New Orleans)

Aaron Seth Kesselheim (Harvard Medical School)

Mattias Kumm (New York University)

Christine Landfried (University of Hamburg)

Margaret Lemos (Duke University)

Sanford Levinson (University of Texas, Austin)

Angela Onwuachi-Willig (University of Iowa)

Charles Sabel (Columbia University)

Norman Silber (Hofstra University)

Wojciech Sadurski (University of Sydney)

Gerald Torres (Cornell University)

Neil Walker (University of Edinburgh)


July 6, 2014 in Faculty News | Permalink