"Guilt by Association"

I. F. Stone (Isidore Feinstein), 1907-1989

very progressive journalist, and pioneering user of 

the trope "guilt by association"

All my adult life as a newspaperman I have been fighting, in defense of the Left and of a sane politics, against conspiracy theories of history, character assassination, guilt by association and demonology.  I.F.Stone

A "new McCarthyism" is seen in the manner in which guilt by association has been pursued by the likes of Glenn Beck and "mainstream" GOP leadership (if there is such a thing).  Katrina vanden Heuvel, The Nation

In the United States of America, we don’t practice guilt by association. And let’s remember that just as violence and extremism are not unique to any one faith, the responsibility to oppose ignorance and violence rests with us all.  Jeremy Ben Ami, President, JStreet

 The tenuous "evidence"—later discredited—that landed Arar in a rat-infested cell was guilt by association. And if that could happen to Arar, a successful software engineer and family man, who is safe?  Naomi Klein

This is the story of a late-twentieth century invention, namely the ostensible moral and intellectual sin of accusations of "guilt by association."

This trope, "guilt by association," or GbA,  has a curious history and a curious present.  It has the following characteristics:

1) The trope user is almost invariably a self-described person of the "Left," or, in somewhat more modern usage, a "progressive."  The target is someone perceived as, or at least designated as someone opposed to the Left, a "right-winger."

2) The trope has a surface resemblance to accusations of established errors of reasoning -- fallacies -- but in fact it is the user of the trope who is illogical and irrational.

3)  The accusation underlying the usage of the trope is as much moral as intellectual;  the trope user combines a disdain for the ethics and morality of the target (the ostensible bad faith of so-called right-wing McCarthites, for example) with an accusation of intellectual incompetence (failure to understand elementary logic).

4)  The trope enables its users, who are often devoted supporters of totalitarian and other hateful movements, to pose as moral and intellectual superiors.

Morris Raphael Cohen (1880-1947)

Except when an author is involved in left-wing political polemics himself ( e.g. Fearnside and Holther in "Fallacy," 1959),  books on formal logic do not discuss this trope;  despite the claims by its proponents, it is not one of the recognized "fallacies."  But there is, or can be, some kernel of truth in the otherwise mindless GbA trope, namely that generalizations can be inappropriate.  Here is what that eminent American logician and long-term CCNY professor Morris Raphael Cohen (with Ernest Nagel) had to say in their Introduction to Logic and Scientific Method (1934):

We have so far discussed the relation between premises and conclusion in case of rigorous proof.  But complete or conclusive evidence is not always available, and we generally have to rely on partial or incomplete evidence.  Suppose the issue is whether a certain individual, Baron X, was a militarist, and the fact that most aristocrats have been militarists is offered as evidence.  As a rigorous proof this is obviously inadequate.  It is clearly possible for the proposition Baron X was a militarist to be false even though the proposition offered as evidence is true.  But it would also be absurd to assert that the fact that most aristocrats are militarists is altogether irrelevant as evidence for Baron X having been one.  Obviously one who continues to make inferences of this type (Most Xs are Y's, Z is an X, therefore Z is a Y) will in the long run be more often right than wrong.  An inference of this type, which from true premises gives us conclusions which are true in most cases, is call probable. 

Those who employ the GbA trope misconstrue statements of probability to make them appear to be statements of certainty.  For example, the Wikipedia article on GbA employs a Euler diagram to argue the obvious:  if some B is part of C, it does not follow that all of B is C.  But in the political discussions to which the GbA users address themselves, the arguments by the GbA targets are not arguments of certainty.   It is not (typically) claimed that all members of a Communist front organization were dedicated Stalinists.  Insofar as such arguments were at all serious, they were arguments of probability, not certainty.

The "guilt" in the GbA trope is also telling.  "Guilt" is a term most frequently used in the criminal law, where the standard of proof is much higher  -- "beyond a reasonable doubt" --  than in the everyday world of political discussion.  The judgements we make in ordinary scholarship and in ordinary life  rely on what seems more probable, not on what seems probably beyond a reasonable doubt.   During the lifetime of the late Paul Robeson, for instance, both he and the Communist Party always insisted that he was not a Communist at all, just a very progressive person.  (After he died, the CP revealed that he had been a secret Communist all along).  But in his lifetime, given all the various associations of Robeson, it was reasonable to hold, by a balance of probabilities, that Robeson was a Communist, even absent proof beyond reasonable doubt.

Moreover, the trope "guilt by association" is ambiguous in its very nature.  It is regularly applied to the following types of statement, among others:

1)  A was once seen in a certain bar in which the notorious gangster B was also seen.  Therefore A is a gangster.

2) A is a member of five groups that were dominated by the Communist Party.  Therefore there is a certain probability -- whether high or low needs to be established by all the other circumstances -- that A is also a Communist.

It is the gravamen of GbA proponents that the truth-value of propositions 1) and 2) is exactly the same, namely nil.  That is of course preposterous on its face.  Pace these progressive writers and activists, associations among men are varied.  Sometimes negative inferences can be drawn from them to a greater or lesser degree of probability.  In some instances, as for example in those designated by the law of conspiracy, association may indeed give rise to valid findings of criminality.  In other cases association may be totally harmless.  Most generally, human associations are relevant without being conclusive in a great many of the judgements that we are called upon to make.    The proponents of the GbA trope must know this as well as we all do;  in the course of their daily lives they must know, just as the rest of us do, how to chose their spouses, their friends, their business associates,  their merchants, all on the basis of some sort of "guilt by association" judgements.  But when it comes to politics, these progressive GbA proponents declare that all evidence of human association is ultra vires, inadmissible for discussion in the market place of political ideas.

The origins of the GbA are not altogether clear.  The usage seems to have arisen in the post-WWII era, most specifically in the nineteen fifties.  The country was faced, on the one hand, with a Stalinist conspiracy, both through an elaborate network of Communist front organizations and Soviet espionage.  On the other hand, there were demagogic politicians, notably Senator Joseph McCarthy, who sought to use the Soviet conspiracy for his own purposes by making exaggerated claims of Communist penetration of the US government.  But there were indeed many Communists in places of influence, for example in the trade unions, who by and large attempted to rid themselves of Communist domination.  The trope "guilt by association" seems to have arisen in this atmosphere as a defense mechanism by Communists and their fellow travelers.  I. F. Stone, quoted above, was one of the most prominent users of the trope.  The logic was always this:  true, some members of the front organizations are Communists, some may even be Communist spies.  But this has no relevance, no relevance whatever, to the nature of the "progressive" (read front-organization) movement.  Not a few of these progressives had been students at CCNY during the tenure of Morris Raphael Cohen;  their ears had obviously been deaf to his teaching.

Today, the trope seems to be used in two specific efforts by the progressives.  The first is to criticize (and to misconstrue) the public's concern over Islamist terrorism.  This concern is termed "Islamophobia," a fairly new addition to the progressive polemical armamentarium.  The GbA argument runs as follows:  a) it is true that some Muslims are terrorists;  b) not all Muslims are terrorists; therefore, c), it is unjust, it is "guilt by association,"  to be more concerned over activities of American Muslims than over those of American Christians and Jews.  The fallacy of the trope, of course, is to construe the heightened concern by the public as holding that "all Muslims are terrorists."  This latter proposition is not advanced by anyone in public life who is at all serious.  Were it to be encountered, it would of course be both false and malicious.

The second GbA effort concerns the overlap of self-described "leftists" and "progressives" on the one hand with the organized anti-Israel movement on the other. As I have shown in a previous posting, the progressive group JStreet contains a sizable number of aggressive opponents of Israel.  Those of us who point to this association are regularly accused of using "guilt by association."  The logic, or rather the illogic of this accusation takes the same form as that of the other GbA accusations that we have seen.

I recently reported my finding that six of the nine identified top leaders of the Occupy Wall Street movement were also active in the anti-Israel movement.  One reader, an ordained rabbi no less, wrote to complain that I was engaging in a "guilt-by-association" argument.  I wrote back, explaining, among other things, that I made no accusation of "guilt" but I also insisted that surely, to a thinking man, there would be something of interest in this finding.  "Nothing of interest at all," replied the rabbi,   "what you say is a red herring."  Red herring ?  Here is another left-wing trope from the fifties. My curiosity was aroused.  "Rabbi," I wrote back, "indulge  my curiosity:  do you personally support the boycott movement against Israel ? "  "I will not answer this question;  it has no relevance to our discussion,"  replied the good rabbi.  Well there you have it:  an I. F. Stone of our time, bearer, unlike his predecessor, of the nice Jewish name of his birth.

Above all, the Arabs don't want the Jews to have a state....

Finally, a leading Israeli politician tells it as it is.

The Arab street, and elites,  may or may not wish the Palestinians to have a state.  But their main preoccupation, now as much as at any time, is to get rid of Israel.  This, more or less, is the gist of a remarkable interview with left-of-center Knesset member Einat Wilf, published in the Jewish Week of September 16. To read the whole interview, click here.

And here is an excerpt:

... the last decade, with the failure of Camp David, the intifada, the disengagement, the repeated failures of the Palestinian leadership to take advantage of opportunities to have a state has made me very skeptical. I began to question whether the Palestinians want a state more than they want the Jews not to have a state. They may want a state, but it’s second or third priority after making sure the Jews don’t have their state … I’ve become increasingly convinced that the conflict is not about simple territorial claims that can be resolved by finding where exactly the border should go. At the core, the entire Palestinian identity is wrapped in the battle against Zionism. It emerged as a separate identity only through this battle, and for them justice was always more important than statehood. … Given the opportunity to have a state but not perfect justice they’ve always tried to pursue their version of justice and given up on having a state…

 Einat Wilf

I felt the self-flagellation that has become a mark of the left — we don’t have peace because Israel didn’t do enough, in Camp David Barak should have been nicer to Arafat, should have let him go first through the door — it was getting to the point of just being ridiculous...
I’m still in the left in the sense that if by some miracle tomorrow there were an agreement with the Palestinians and it came to a vote in Knesset and we had to get out of the West Bank, I’d vote for it. I don’t have an emotional problem or attachment or messianic views that would make that difficult for me … But I’ve become skeptical that this is what the conflict is about and that it is possible to reach an agreement …

RIP: Eugene Nida, 1914-2011

He was not literally my teacher.  I never met him, and I certainly never sat in a class that he taught.  But I have learned from colleagues who had learned from him.  Two of his great books are on my shelf and I still refer to them from time to time:  God's Word in Man's Language (1952), and Bible Translating (1961).  Despite the fact that I have never had a direct interest in Bible translating, these books had a lot to teach me and indeed all social scientists.  Nida, together with a few others, was a giant in the social science of linguistics.  (Those were the days when linguistics was still a social science and not the speculative game it became later). Now he died, aged 96.

Here is a rare video of Nida as an old man, still teaching:



and here, a bit of comic relief, is an attack on Nida's scholarly approach to translation by a fundamentalist who thinks that the Bible needs to be translated one word at a time:



Of course the Chomskyans, who do not believe that language should be studied empirically any more than this misguided religious fundamentalist, could no doubt make an equally ludicrous anti-Nida video.  Maybe they already have.

Not to be missed:  the fine obit in the NYT by Margalit Fox.

Snake Oil for Sale: The Charlatans of Jewish Public Opinion Research

Two well-known Jewish organizations with contrasting attitudes toward Israel have recently claimed to have plumbed American Jewish attitudes in this subject.   Each group has claimed that its own political stance is the one actually favored by the Jewish community as a whole.  But since neither of these groups -- JStreet on the one hand, the Committee for Accuracy in Media (CAMERA) on the other -- has used scientific methods of public opinion research,  neither's claim can be said to be supported.

I have recently written an article in which I summarized my objections to JStreet's methods, including its polling, so I will not repeat this material here.  My objections to CAMERA's polling materials will become clearer presently.

*****

Some thirty or forty years ago my colleague Tony and I were sipping a little something in the Faculty Club, and this is the amusing tale he told:

It seems that a couple of decades before this, a man who later became quite important as "an intellectual" -- let's call him X -- crossed the US-Canada border from Detroit to Windsor to spend a half hour  of "observation" in Ontario.  He carefully took note of the automobiles that passed him in the street of Windsor, noting the manufacturer of each.  Upon returning to Michigan, he penned a report to his nephew.   Canadians, X averred, favor the Ford automobile over any other make, by a margin of about ten to one.  That "observation," I believe, later became enshrined in the X's published oeuvre.

But snake oil sold as social-science wisdom is not always so charmingly harmless.  During the presidential election campaign of 1936, the Literary Digest polled ten million Americans (of whom about 2.5 million responded) and concluded that Ralph Landon, the Republican, would be an easy winner.  In November, as we all know, it was the Democrat Franklin D. Roosevelt who won, overwhelmingly, carrying 46 out of 48 states.

What went wrong ?  And what went wrong with the current polling of American Jews that I am so concerned about here ?

When properly done, the science of public opinion polling can accomplish remarkable feats of understanding.  By consulting about two thousand people -- an appropriate random sample of about this number -- it is possible to gain insight into the opinions and attitudes of millions.  The theory of  this sampling (i.e. probability theory) has been understood by mathematicians for hundreds of years, but it has been the social science of the twentieth century that has developed the techniques to accomplish adequate public opinion polling.  But recent times have also brought to the fore a host of charlatans in this area.  How can we tell the genuine from the specious ?  The genuine from the grey-area operator ?

The principles are clear enough.  On the one hand there is a "population" or "universe," too large or otherwise impractical to study directly, on the other hand there is the random sample which, to a known degree of accuracy, "represents" this population.  How can this sample be obtained ?  The most basic requirement is that each member of the population has an equal chance to be drawn for the sample.  So, in principle, we must have a complete listing of the members of the population, and then a mechanism, such as a lottery cylinder, to draw individuals by strict random methods.

In practice, the strict adherence to random principles is generally impossible, not least because a complete enumeration of the underlying population does not exist.  If American Jewry is postulated as the population, there is also the additional problem of definition:  who is a Jew, exactly;  is synagogue affiliation either a necessary or sufficient attribute ? Jewish parents ?  If so, how many ?  And so forth.  Also, as I have shown elsewhere, there are inherent problems of a sample of American Jews if it is based on a random sample of all Americans,  primarily because American Jews are not distributed randomly in the American population, so that such samples systematically under-sample areas of Jewish concentration.  All such problems have reasonable solutions, but these are scientifically complex, and also generally more expensive than certain "pollsters" will want to consider. The  National Jewish Population Survey, on the other hand,  furnishes an example of responsible scientific work.

For the use of public opinion polls in general, the New York Times has published its own very sensible standards.  What can the reader do when faced with reported "public opinion data" of unknown quality ?  Responsible, high quality social science in this area is not always easy to verify, since there are so many variables:  the selection of a scientific sample (obviously the first necessity), the formulation of the questions (sometimes inadequate, sometimes biased), the overall scientific quality of the various steps in the research process.  On the other hand, there is a telltale of absolutely unacceptable work:  failure of the researcher to disclose the details of his work.  When, as is the case of both JStreet and CAMERA here, the researcher fails to specify how his sample was obtained, the research, if for no other reason, is unacceptable.

As it happens, I have in the past corresponded with the executives of CAMERA, and so felt free, especially in view of my overall support of the work of that group, to express my suggestions in regard to their use of polling data.  I wrote to two of these people, for a total of three times, without ever once receiving a reply.  Here is the text of one of my messages:

Dear   , 

It would appear that the Luntz poll, which CAMERA sent around in its latest Alert, is not a scientific poll.  If I am right on this, it should be labelled non-scientific, to be accepted, if at all,  with caution. 

I am particularly interested in this problem because I recently had to criticize the polling practices of JStreet....It would appear that my methodological points here apply to Luntz as much as to  Gerstein (JS's pollster). The problem is the following:  it is very difficult (read expensive) to have a valid sample of the American Jewish population.  As I point out in my blog, the National Jewish Population Survey does a very good scientific job of surveying the Jewish population, but, as far as I can tell, nobody else does.  I wrote to JS's Gerstein to voice these concerns, but never received an answer. 

Yesterday I wrote to Luntz, as follows: 

Would it be possible to get details on how your sample was selected ?
My interest in the matter is detailed here:
http://www.fringegroups.com/2011/05/jstreet-gentle-facade-and-whats-behind.html
thanks for your help
Werner Cohn 

to which I received the following reply: 

Thank you for contacting us.  We appreciate your thoughts, suggestions and time it took you to write us. 

You MUST register ON OUR WEBSITE to be eligible for one of our focus groups or nationwide surveys.   You can sign-up on our website at http://www.theworddoctors.com/  Sorry, but requesting to sign you up by emailing us will not work. 

Due to the high volume of emails we receive, we cannot guarantee a response to your email. 

Remember: it's not what you say, it's what people hear. 

Sincerely, 

Dr. Frank Luntz & The Word Doctors Team
*Become a fan on Facebook* http://www.facebook.com/pages/Dr-Frank-Luntz/249263279310

The report of the Luntz survey, to which CAMERA links, contains no information on how the sample was selected.  When this information is missing, no knowledgeable  reader can accept the results as scientific.  I think that you should press Luntz to explain his methodology publicly.  If he does not provide this information, and/or if, as I suspect, his methods prove to be less than scientific, there needs to be a disclaimer on your website, IMHO. 

No doubt you will appreciate the position of CAMERA supporters like myself when we criticize JStreet's various obfuscations.  If, as I hope it will, CAMERA comes out for truth in polling, our criticisms of JStreet  can gain significant additional force.

IN MEMORIAM:  John Gray Peatman (1904-1997), my first statistics professor at CCNY, ca. 1949


UPDATE, MARCH 2013

The organization Workmen's Circle has an old and proud history in the American Jewish community.  Formed by Eastern European immigrants in the early 20th century,  it had connections with the anti-Stalinist Jewish socialist movement.  It gained many members through its "fraternal benefits," i.e. funeral arrangements.  I myself belonged to it for a short while.

But lately, partly through its emphasis on its Yiddish-speaking heritage, it has largely fallen prey to a new type of membership:  militantly secularist, allied to anti-Israel causes.  Its old-time membership, people in their eighties, seem bewildered and outgunned.

Now this latter-day WC published what it calls a poll of American Jewish opinion, arriving at conclusions that purport to show that American Jews actually care little about Israel.  And how did the pollsters of the WC learn all this ?  Here is their description of their sampling method:

The poll was commissioned by the Workmen’s Circle / Arbeter Ring. For more information on the organization, go to:www.circle.org.
Principal investigators were Professor Steven M. Cohen of the Hebrew Union College-Jewish Institute of Religion (HUC-JIR) and Professor Samuel J. Abrams of Sarah Lawrence College and Stanford University.
The Washington office of IPSOS, under the direction of Dr. Alan Roschwalb, fielded the survey. Respondents included 1,000 American Jews, by Internet, who had previously agreed to participate in social research conducted by IPSOS. Survey was conducted April 19 – May 3, 2012.
The results were weighted to reflect the American Jewish population with respect to age, gender, regional distribution, educational attainment, marital status, intermarriage status, and Jewish parentage (none, one, two parents). They were also weighted to reflect registered voters

The participants in this "poll" were, it would seem, self-selected.  All were internet users, which of course automatically eliminates Haredi Jews.  The procedure seems, as if by design, to evade all scientific understanding of sampling.

Or did I perhaps miss something ?  Can something be said by way of reasonable scholarly explanation of this poll ?  I sent polite separate e-mails to Professor Cohen and Abrams, as well as to IPSOS and even the WC itself, asking for more details on the sampling method used in the poll.   Not one of these bothered to answer my  questions.

The Syrian revolutionary anthem -- Get out, Bashar

And here is the NYT article that gives the background

The Brouhaha about the Anti-Boycott Law in Israel

Two days ago two events took place in Israel: 1) the Israeli Knesset passed a law that provides for civil penalties for those who organize boycotts against Israel, and 2), at about the same time, Hamas resumed the firing of Qasam missiles into Israel. And guess what: all the self-described friends of peace in the Middle East -- the New Israel Fund, the Americans for Peace Now, and their allies -- are outraged, absolutely outraged at event number one, but considerably less so at event number two. In fact, these great friends of peace, to judge by their websites, have not at all noticed event number two. Peace, to these peaceniks, is not at all endangered by Hamas bombardments.

(It seems that Jewish organizations across the political spectrum have expressed criticism of the the anti-boycott law, but the hysteria about it is restricted to the self-styled Left. NGO Monitor has published a very good analysis of the law, including an English translation of its text.)

It may very well be, as NGO Monitor maintains, that this new law is objectionable on a number of grounds, and it also may very well be that it will be overturned by the courts. But in the meantime here are some factors that got lost in the brouhaha:

1) Israel finds itself in an existential crisis. The loftiest of advice is of questionable value when it comes from people far away, who, moreover, do not have to face the consequences of their admonitions. A beau mentir qui vient de loin.

2) Freedom of expression is a vacuous formulation if considered without context. For example, there is no jurisdiction on earth, or imaginable, without limitations to freedom. There are the obvious prohibitions about shouting "fire" in a crowded theater; about libel and slander; about false advertising; and many others. What the limits should be in a given circumstance can only be determined by a close consideration of its particulars. In the case of the anti-boycott law, it is important to recognize the evil to which this law is addressed: the agitation by a number of well financed groups, with the bulk of the money coming from abroad, to delegitemize the state of Israel. That is a problem to which the Knesset obviously had to react. Perhaps the law in this first version is overreaching or otherwise inappropriate, and it seems that amendments to it are under consideration. But to criticize the law without at all recognizing the underlying problem is mindless.

3) The right to organize boycotts, pace the opinion of the hysterics who are discussing this law from afar, is not one of those rock-bottom democratic rights like freedom of the press. It is not a tool of rational discussion but rather a tool of coercion: do as I say or I will try to take away your livelihood. In the United States there are limits to the right to organize boycotts. Unions may boycott employers with whom they have a dispute, but they cannot engage in "secondary boycotts," i.e. boycott those who do business with these employers. And it is also illegal, in the United States, to collude in boycotts organized by foreign governments. It is similarly illegal to orchestrate boycotts against racial or religious groups where public accommodations are in play. In brief, public policy recognizes that the freedom to engage in public actions must stop where the freedom of others is encroached.

4) The left-leaning groups who are so enraged at what they think is an unjustifiable limitation of freedom here never criticized the Knesset, as far as I can remember, when it banned Kahane's Kach party in 1988. It seems that these great defenders of absolute freedom are quite happy when it is their opponents who are banned.

In the end, many people in this world, including many diaspora Jews and not only those on the Left, are quite eager to see a mote in Israel's eye while missing the beam elsewhere.

Excising the Context, Killing the Truth

How the contextomists (those who would cut out the context) see a Mafia without crime, a Hiroshima without World War II, and Israel's defensive actions without the Arab terror. Read my new posting

The rooster clucks defiant ....

As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. American Bar Association

The rooster clucks defiant, the lawyer ....s the client. Disputed legal maxim

In my life of 85 years I only rarely had occasion to engage a lawyer. All of the instances in which I did involved either real estate transactions or preparation of a will. Most of these transactions went smoothly enough, but there were exceptions. Too many of these, IMHO.

One case of malfeasance can be described simply enough. Some fifteen years ago I had a neighborhood attorney, whom I shall call Mr. A., prepare wills for Rita and me. Upon completion of this task, A. told us that he would keep the originals in his files, at no charge, so that they could always be found. Some thirteen years later we felt it necessary to revise these wills and tried to get hold of the originals. But A., who was still listed as a member of the NY bar, was nowhere to be found. He had no listed telephone, nor had he bothered to inform Appellate Division of the NY Supreme Court of his whereabouts, as by law he was obligated to do. After about a week of phoning people who had the same last name as he, I located a relative who gave me his then-current address. It took another week or ten days before I could finally wrench our wills out of him. I reported the incident to the legal disciplinary body, which, months later, administered the slightest tap on A's wrist that it could find.

Comment: lawyers who keep your will for safekeeping do you no favor. It is a common practice whose sole purpose seems to be to ensure more legal business for the lawyer years hence. In the state of New York, the Surrogate Court will file a will for safekeeping; that, IMHO, is the logical course of action to take.

We were victims of an earlier, more complex case of attorney malfeasance twenty years ago.

The matter arose in connection with the sale of our house in Vancouver in 1991. The incident was very painful to me at the time but I cannot say that it caused me actual damage. So, as far as I am personally involved, you might say that the matter is moot. But I think that there remain issues of public concern, and it is for that reason that I am spending time on it now.

I retired from teaching at the University of British Columbia some years before, and Rita and I decided to leave Vancouver to return to New York. We sold our house in the West Point Grey section of Vancouver in March of 1991 in preparation for our return to New York on April 15. We were represented in this sale by a solo-practice neighborhood attorney (Mr. B) with whom we were acquainted because he was a "friend of a friend" (red flag !). The buyer was a member of a very prominent Canadian family and was represented by one of the most prestigious law firms in Canada (firm C.). B. is no longer listed as a member of the British Columbia bar; firm C. seems to have become even more powerful and more prominent in the intervening years, many QC's serving among its partners (QC, Queens Counsel, is a distinction bestowed by the government upon the most prominent lawyers in Canada). I have now written to the Chair of firm C.; his reply was gracious (he had been a student of mine, it turns out), but he professed ignorance of the case.

The possession date in our transaction was March 31, 1991. On March 25, B. presented us, for the first time, with a Vendors' Statement that included the following as Note 4:

All parties agree that the representations regarding the sale and purchase of the subject property are not merged in the formal completion of this transaction and survive the execution of the closing documents.

When I questioned B. about the meaning of this provision, he explained that I had represented the house as free from Urea-Formaldehyde Insulation (UFFI) in the pre-purchase stage of the transaction, and that this warranty of freedom from UFFI would ordinarily expire with the formal completion of the sale under the doctrine of merger. Now, B. explained, the "other side" wanted me to sign a waiver of merger so that I would continue to be liable for any UFFI found in the future, apparently in perpetuity.

I explained to B. my position as follows: 1) I had not participated in his negotiation that resulted in the drafting of this waiver, and I do not agree to it; 2) my representation regarding UFFI was made in good faith, according to the best of my knowledge and belief; 3) the buyer had inspected the house in the pre-purchase period, and had not, presumably, found any UFFI. Thereupon B. explained that if I were to demand the deletion of this Note 4, the buyer would interpret that as a sign of guilty knowledge and would back out of the deal. He also said that Note 4 was the fair thing to do. Fair to whom, I asked. I explained to him that it was his obligation to represent my interests, and, in any case, to consult me about making concessions. Nevertheless, he pressed me to sign.

My situation was as follows: my family had packed its belongings and was ready to leave Vancouver within days. To have the buyer back out of the deal at that stage would have been very inconvenient, to say the least. So I did sign, but I also wrote a letter to B. that expressed my great displeasure at his disloyal behavior. I considered it malpractice, and I also wrote to him that, in the unlikely event that his negligence result in damages to us, I would hold him responsible for these.

As it turned out, there never were any subsequent claims about UFFI at this residence, at least not as far as I was informed.

Now here are my conclusions about this affair. Points 1) and 2) are critical of my lawyer, Mr. B.; Point 3) is critical of the law firm that represented the buyer, firm C. Point 4) is critical of both. Point 5) is the most important, and relates to the problem of inequality in legal representation.

1) An attorney should not agree to concessions on behalf of a client without consulting the client.

2) An attorney should not agree to concessions which, once made by this attorney, turn out to be irreversible, even before the client is ever made aware of them.

3) The party adverse in a case like this should be mindful of the behavior of the attorney with whom it is negotiating. It should be careful not to collude with an attorney who appears to violate obligations to his own client.

4) The legitimate concerns of a buyer over possible hidden defects should be met in ways other than binding the seller in perpetuity. I understand, for instance, that it is possible to buy insurance to cover such contingency.

5) As I reconstruct the events in this transaction, it would seem that the great inequality in power and prestige between the attorneys may well have been influential in the outcome. It seems that B. may have felt powerless to stand up to the high-prestige legal team on the other side, and may, for that reason, have agreed to terms that were injurious to his own client.

My Point 5) is of course conjecture. But it might be interesting to look into the problem by consulting other Vendor Statements. How often are there non-merger clauses when the seller is a client of a high-prestige firm, compared to when the seller is represented by low-ranking lawyers ?

Dear Jewish Sincere Friends of Peace: Have you Missed this little Detail ?

Poster of the (Israeli) Peace Now movement:
"Each flag needs a balcony"

Israeli public life has many very Sincere Friends of Peace. "Peace Now," the Meretz Party, many members of Labor, the most influential Israeli newspaper (HaAretz), and many smaller groups, all compete with one another, year in year out, demanding that the Israeli government make more concessions to the Arabs so as to achieve peace. And as for Jews in the diaspora -- the U.S., Britain, continental Europe -- well, it seems that currently the loudest voices (though not necessarily the most numerous or the most thoughtful) chime in: peace now, make more concessions, abandon the settlers on the West Bank -- peace now !

Even people like myself who are unaffiliated with such groups can rejoice in the colorful diversity that such organizations contribute to Israeli and Jewish society. Of course I do not rejoice in the ultras, those who work for the destruction of Israel, but, surely, those are a different kettle of fish altogether.

But to come back to the major "peace" groups. Anyone who has watched them for many decades, as I have, must have noticed a little detail that seems to have escaped them altogether. That detail consists of an absolute absence of any similar peace movement among the Arabs. Even allowing for the fact that there is very little of a functioning "civil society" in Arab societies that would allow for unofficial political movements, it is nevertheless true there is some variety among Arabs in their views concerning Israel. Insofar are we can judge from public opinion polls and expressions in Arab writings and speeches, this variety runs the gamut from the most extreme hostility (Hamas) to somewhat milder hostility.

But, whatever the details, the broad picture is evident. There is no "Peace Now" among Arabs. There is no "Arab Voice for Peace." There are no "Arabs for a Just Peace." There is no AStreet that would urge concessions to Israel. Nothing of the sort.

My dear Sincere Jewish Friends of Peace: can you detect a little problem here somewhere ?

Arab Attitudes toward Jews (WARNING: graphic images)

Yehoshafat Harkabi,author of Arab Attitudes to Israel,Jerusalem,1972
born 1921, died 1994

Anti-Jewish sentiments are almost universal in the three Arab nations surveyed - 95% or more in Lebanon, Jordan and Egypt say they have an unfavorable opinion of Jews. 2008 Pew Report

In my previous posting I described the newest manifestations of Jew-hatred in the Egypt of today, and also the conspiracy of silence in the Western press when faced with this inconvenient set of facts. The deep-seated hatred of Jews among Arabs is not new and has often been documented. Perhaps the most thorough of these descriptions is that of Y.Harkabi ("Arab Attitudes to Israel," Jerusalem, 1972). Now almost forty years old, this classic, indispensable work consists of a content analysis of the Arab press and literature throughout the Middle East. When Harkabi first wrote the book as a dissertation at the Hebrew University in 1967, direct studies of Arab public opinion (opinion polls) were unavailable. Now that they are, for instance in the form of Pew poll data, we are faced with the sad realization that what Harkabi reported in the Arab literature of his day is still with us, and not only as written words, and that the details he gives are descriptive, by and large, of what goes on today.

Before we go to expressions of Arab opinion, much of it consisting of verbal violence, here is the Wikipedia report on an incident in which this verbal violence was acted out in deeds -- the lynching of Israeli soldiers during the 2000 Intifada. (And to those who say that Harkabi's work is so outdated: this incident took place thirty-three years after he wrote.)

The 2000 Ramallah lynching was a violent incident in October 2000 at the beginning of the Second Intifada in which a Palestinian mob lynched two Israel Defense Forces reservists, Vadim Nurzhitz (sometimes spelled as Norzhich) and Yossi Avrahami (or Yosef Avrahami),^[1] who had accidentally entered the Palestinian Authority-controlled city of Ramallah in the West Bank. The brutality of the event, captured in a photo of a Palestinian rioter proudly waving his blood-stained hands to the crowd below, sparked international outrage and further intensified the ongoing conflict between Israeli and Palestinian forces.

Aziz Salha, one of the lynchers, waving his blood-stained hands from the police station window. Salha was later arrested by Israel and sentenced to life imprisonment.

Harkabi devotes separate sections to various themes in the Arab treatment of Israel and the Jews. Here are a few of his section headings: the vileness of Zionism; Zionism and Nazism; the vileness of the Jews; Judaism as conspiracy for world domination; scurrility, absurdity, and falsehood in the Arab statements; the Islamization of Jew-hatred. He also notes the frequent use of the notorious "Protocols of the Elders of Zion."

One element of current Arab anti-Semitism that was not found in Harkaby's materials is Holocaust-denial. This aspect of Arab anti-Semitism is relatively new, reaching great prominence only in the 21st century. There is a good description of it in Robert Wistrich's very important recent A Lethal Obsession, pages 646-661.

Harkabi lists 182 Arab sources, all of which he analyzed in their original language. (Just wondering here: how many Arab books have been studied by Mr. Jimmy Carter, in their original language ? Or by the telling-Israel-what-to-do crowd at J Street ?) Here is a quotation from the Arab writer Nashashibi, who visited Jerusalem before the unification of 1967, and looked over the wall at the Jews of West Jerusalem:

.... a collection of the world's hooligans and its garbage .... Dogs, robbers, clear out to your own countries !

(We recently heard an echo of that one from Ms. Helen Thomas.) Nashashibi continues somewhat later:

an international dung-heap in which the squalor of the whole world has been collected.

And then there is a quotation from an academic publication, the Egyptian Political Science Review, by the author Fathi Uthman al-Mahlawi (Jan.-March, 1959), among many other such quotations in Harkabi's book:

And thus Britain wanted to exhaust the strength of the Arabs and divide them, and at one and the same time to get rid of the Zionist plague in her country; she assembled these thousands of vagabonds and aliens, blood-suckers and pimps, and said to them: Take for yourselves a national home called Israel. Thus the dregs of the nations were collected in the Holy Land.

It bears emphasis that these Arab writings, like everything else in Harkabi's book, date from before the 1967 war. The reason that this needs emphasis is that we hear so often from the חכמים (Wise Men) of J Street, etc., that if only Israel were to go back to its 1967 borders, the Arabs would make peace post-haste. Fat chance !

Current Arab anti-Semitism is regularly reported by Memri and Palestine Media Watch, and there is plenty to report, week in week out: Holocaust denial, description of Jews as descendants of pigs and dogs; allegations that Jews murder gentile children; description of Israel as being similar to Nazi Germany; incitement to hatred in Arab schools and mosques; etc. etc. What we cannot know from such reports is how typical they are of the Arab population. The Pew Report, cited above, is not reassuring in this respect. Moreover, of course, we do not know what the future will bring. Harkabi himself believed that anti-Semitism is not very deeply rooted in Arab culture, and he was cautiously optimistic about prospects for an eventual accommodation between Israel and its Arab neighbors.

But whatever the prospects for the future, we cannot afford to be in denial of the current deep, pervasive hatred of Jews in what is known as the "Arab street," among the Palestinians and among their brethren in all the neighboring countries.

Egypt's "Street" still hates the Jews

Israelmatzav: Anti-Semitism in the anti-Mubarak crowd

Here is a major scandal that involves The New York Times and other American main-line media: there has been an apparently deliberate suppression of the anti-Semitic incidents in their great, beloved, democratic revolution of Egypt. Al Jazeera reported that "many of the gangs who attack reporters shout 'Yehudi !' " (Feb. 13), but this is something the Times didn't find fit to print. The New York Post had an altogether credible account of the sexual gang assault on CBS's (non-Jewish) correspondent Lara Logan (Feb. 16), viz. that it was accompanied by shouts of "Jew, Jew." But our so very high-minded "quality" newspapers would have none of that. We also know of other anti-Semitic incidents, reported elsewhere, but not in the New York Times.

Now, to its great credit, the Jewish Week of February 25 publishes an impressively researched article by its associate editor Jonathan Mark, The Lara Logan Cover-Up ?, in which he gives details about the shameful Egypt-prettyfication campaign by the Times and other papers.

UPDATE May 1, 2011: Tonight's 60 Minutes has an interview with Lara Logan in which she confirms, though in a muted way, the anti-Semitic aspect of the incident. Will that be enough for the NY Times to break its conspiracy of silence ?

What Goes On at Broolyn College ? -- Some Observations by Abigail Rosenthal

Below is a letter from Abigail Rosenthal, Professor Emerita of Philosophy at Brooklyn College, to the National Association of Scholars, a watchdog organization. I reproduce it here with her permission.

I've long felt that Brooklyn College is an important place in the academic universe. It's a kind of Ellis Island, with students from all over the world, & a significant contingent of Talmudically trained young Jews who do wonderfully in Philosophy. And, when I was there, the student body included upwardly mobile Muslim young people who were often a pleasure to teach, too.

I was gratified when NAS took the stand it did last fall, against a one-sided "common text," portraying Muslims in America as victims, which was assigned as "orientation" reading to incoming students. Since then, as you may know, the latest FBI statistics have come out, showing that Jews are eight times likelier than Muslims to be victims of hate crimes -- the likelihood particularly high in the borough of Brooklyn. It's obvious that we wouldn't want a common orientation text devoted to interviews with Jewish victims of hate crimes in Brooklyn -- not because they aren't victims -- but because we don't want incoming students treated as part of a group with a grievance. Students are individuals seeking their own higher education.

The Petersen-Overton case, where the Provost reversed the hire and then reversed the reversal, was somewhat different. Due process was not followed in the hire. (A second-year student in the PhD program is under-credentialed to teach a graduate course, & his course syllabus, which included a history component, wasn't cleared with the History Dept.) Due process was also not followed in his firing. I think due process, rather than academic freedom, was the main issue here. (Political considerations should not have determined the hire either. Yet it's probable that the Political Science Dept.'s rush to hire Petersen-Overton was connected to his views. When a faculty unit acts that way, I don't think it should be considered the only stakeholder. One can claim, with the AAUP, that advocacy is okay in the classroom. But who in Brooklyn College's Political Science Dept advocates on the other side? One-sided advocacy is not okay, by any standards.)

Anyway, what's done is done. My question is, where are we now, on the Brooklyn campus? Well, the "Palestinian Club" (a group that -- unlike other Muslim groups on campus -- refuses to talk to Jewish students), immediately staged a noisy rally, under the slogan, "We won!" -- rally attended by Petersen-Overton, who addressed his jubilant followers. (I don't think the "We" stands here for academic freedom.) I am told by the Executive Director of campus Hillel that last year's "Israel Apartheid Week" is to be extended to two weeks this year. Which will add up to two weeks of defamation & bigotry on the time & space of a public college.

Meanwhile, thinking it was time for me to get better informed about Petersen-Overton, I read through his posted piece, "Inventing the Martyr: Martyrdom as Palestinian National Signifier." To reporters, he had claimed that it was preposterous to say he endorsed suicide killers; the piece was merely a scholarly study -- in no sense an endorsement of what he now calls "heinous acts". However, now that I've read it, I can say that his denial is not true. The piece is an extraordinary propaganda sheet for Palestinian suicide killers. It is, however, wrapped in postmodern jargon, so that national identity is said to be forged in "imagination" & key terms are in (now-you-see-'em-now-you-don't) scare quotes. One example: the al Dura hoax is first presented as fact, then admitted to have been controverted (though without mention of the relevant evidence) & finally celebrated as a substantive contribution to the process of imagining/creating national identity, with truth or falsity deemed irrelevant. Jews who were physically attacked on the pretext of the al Dura footage could not have agreed that its falsity was irrelevant. One could spend a lot of blood, sweat & tears countering every slanted & misleading claim about Israel. He is counting on that not being done.

It seems to me that by now the campus has generated a hostile atmosphere for Jewish students & has conveyed the message (via the orientation text, via political theatre on campus, via this now-underscored hire, via the expanded "Israel Apartheid Week"), to students & faculty, that only one political view has official sanction, from the effective faculty & administration.

I'm not sure whether anything can be done about it, but it needs watching, & what we don't have is a victory for academic freedom tout court. The College is not a better place, after all this has happened. At any rate, I wanted to let you know of my view of this troubling situation.

Mr. Hu: Tear Down the Laogai

Flash: here is what Mr. Obama did not say: "Mr. Hu, Tear Down the Laogai !" He should have said it, publicly, loudly.

What is the Laogai ?

Laogai (simplified Chinese: 劳改; traditional Chinese: 勞改; pinyin: láogǎi), the abbreviation for Láodòng Gǎizào (勞動改造/劳动改造), which means "reform through labor," is a slogan of the Chinese criminal justice system and has been used to refer to the use of prison labor and prison farms in the People's Republic of China (PRC). It is estimated that in the last 50 years more than 50 million people have been sent to laogai camps.^[1] Laogai is distinguished from laojiao, or re-education through labor, which is an administrative detention for a person who is not a criminal but has committed minor offenses, and is intended to reform offenders into law-abiding citizens.^[2] Persons detained under laojiao are detained in facilities which are separate from the general prison system of laogai. Both systems, however, involve penal labor. (Wikipedia)

Laogai constitutes perhaps the single worst human rights outrage on earth today. It is probably the only large-scale remnant of the Soviet system. The indispensable source of information is the Laogai Research Foundation, led by Harry Wu, a former prisoner of the system.

How do you figure the circumference of a circle ?

And why would you want to do that ?

In his final week as Chancellor of New York's public schools, Mr. Joel Klein was interviewed on TV about his educational philosophy. Well, he opined, a child certainly must know how to figure the circumference of a circle.

Now I bet that Mr. Klein himself, a lawyer and educational administrator, never once had to figure the circumference of a circle after leaving high school. Perhaps he needed this knowledge for higher math in college, and perhaps not. I myself happen to remember the idea: 2πR, and of course I needed this knowledge when I studied trigonometry and calculus. So yes, I am not against teaching 2πR somewhere in high school, or, better yet, teaching how to find the formula if you happen to need it.

But compare this to mathematical ideas that everyone truly needs, and that are not taught in high school, at least not on a regular basis. Take the basic ideas of statistics, in particular the idea of sampling and the often-abused idea of "statistical significance." These concepts are essential to all citizens because they enable a person to evaluate the (frequently false) claims made in the media about medical research, public opinion polls, and much else. (For a recent account of the misleading nature of scientific reporting -- in the absence of an understanding of the basic ides of statistics -- see the important article by Jonah Lehrer in the New Yorker of December 13, 2010.)

Here is one more example of the mindlessness of the current crop of "educational reformers" who preach the gospel of testing, large classes, charter schools, firing of teachers, and. overall, a disregard of Dewey's concern for "the child and the curriculum." See my previous posting here.