Hastings Law De-Sponsors Palestinian Conference — and Makes David Luban’s Point

The San Francisco Chronicle has the story:

The conference, titled “Litigating Palestine,” took place at the San Francisco campus March 25 and 26. The 13 speakers – four of them Jewish, according to a school official – discussed legal issues and court cases involving Israel’s occupation of the West Bank and Gaza, protests, consumer boycotts and related topics.

The event, approved by Hastings’ faculty, had listed the school’s foundation as a co-sponsor along with the Trans-Arab Research Institute. But on the evening of March 24, Hastings’ Board of Directors held a closed-door, emergency meeting and announced that a majority had voted to “take all steps necessary to remove the UC Hastings name and brand” from the conference.

The board also dropped plans for a welcoming speech by Frank Wu, the school’s dean and chancellor. Wu issued a statement the next day saying Hastings understands that the topic “prompts strong feeings on all sides,” but believes that convening such gatherings is “among our responsibilities as an academic institution.”

The law school directors, who are appointed by California’s governor, will not comment on the decision, Hastings spokesman Michael Treviño said Tuesday. But he and other officials said some alumni and organizations had complained to the college shortly before the conference.

They included the Jewish Community Relations Council, whose executive director, Rabbi Doug Kahn, said in a written briefing for the group’s members last week that the event was “an anti-Israel political organizing conference using law as a weapon.”

Kahn said he and regional leaders of the Anti-Defamation League and the American Jewish Committee met with Wu and other Hastings officials March 21, told them the conference was one-sided and urged them to withdraw the school’s affiliation and the dean’s planned speech.

The board’s cancellation of Wu’s address “interfered in the academic freedom of our institution,” said the conference organizer, George Bisharat, a Hastings professor.

Bisharat said opponents had wrongly accused the conference of “Israeli-bashing” and were also off base in arguing that the event was biased because none of the speakers supported Israel’s conservative government. The purpose was to train lawyers in defending Palestinian rights, not to debate whether those rights exist, he said.

To their credit, nearly all of the tenured Hastings faculty protested the move. What I find particularly interesting about the fiasco is Rabbi Kahn’s all-too-typical invocation of “lawfare” as a basis for attacking the conference and undermining academic freedom at Hastings.  His use of that mindless trope provides the perfect opportunity to plug David Luban’s exceptional new essay “Carl Schmitt and the Critique of Lawfare,” which makes the point far better than I ever could.  Here is the abstract:

“Lawfare” is the use of law as a weapon of war against a military adversary. Lawfare critics complain that self-proclaimed “humanitarians” are really engaged in the partisan and political abuse of law – lawfare. This paper turns the mirror on lawfare critics themselves, and argues that the critique of lawfare is no less abusive and political than the alleged lawfare it attacks. Radical lawfare critics view humanitarian law with suspicion, as nothing more than an instrument used by weak adversaries against strong military powers. Casting suspicion on humanitarian law by attacking the motives of humanitarian lawyers, they undermine disinterested argument, and ultimately undermine the validity of their own critique.

The paper then explores the vision of politics and law underlying the lawfare critique through a reading of the most significant theorist who defends that vision, the German theorist Carl Schmitt. Through a reading and critique of Schmitt, the article examines both the force of the lawfare critique and its flaws.

The paper is short and an easy read.  I can’t recommend it highly enough.  Perhaps someone could pass it along to Rabbi Kahn?