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

by Kevin Jon Heller

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?


18 Responses

  1. I don’t see how academic freedom is obstructed by Hastings removing its brand name.

  2. Luban’s paper ends with this statement:

    We could choose to abandon liberal humanitarianism, and that would be a political decision. It would simply be a bad one.

    Reasonable people may disagree about what “liberal humanitarianism” is, but all would I think say that it includes the attempt to find a consensus. The conference held at Hastings was under the auspices of an organization called the Trans-Arab Research Institute. This organization has a website, of course, and part of it is what is described as follows:

    Select Bibliography on the Palestinian/Israeli Conflict:  Books, Journals, Magazines, Websites.  The bibliography is annotated and offers a set of comprehensive listings for those wanting to learn more about the issues.  It can be downloaded with the Fact Sheets and used for educational programs, as well as for press packages.

    Here is the link:


    Here is one entry:

    Finkelstein, Norman, Image and Reality of the Israel-Palestine Conflict (Verso Press, 1995).  Offers critical and scholarly analysis of the apologist studies for Israeli misdoings, and exposes the falsity of their arguments.  Finkelstein  exposes Benny Morris, whose studies of the Palestinian refugee problem brings to light many documents demonstrating expulsion while Morris himself tries to make a case that the expulsion was born of war, not by design.

    Plainly TARI has a highly partisan agenda. You are welcome to look at other entries. Is this consistent with Luban’s “liberal humanitarianism”?

    From the conference organizer:

    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.

    Of course you have the right to a point of view, but Hastings, being part of the California public university system,  is funded with  public money. If I lived in California I wouldn’t want my tax dollars spent on this kind of narrow-minded advocacy.

  3. Prohibiting a Dean from giving a speech isn’t an attack on academic freedom?  Really?

  4. No one is prohibiting Deans from giving speeches. Is the Dean making a speech endorsing the conference in his official capacity of being a Dean, or is he giving a personal opinion? The conference participants were denied the use of one particular forum, one endorsed by Hastings. That’s not the same as being denied the right to speak. They did have a forum and they did speak; it’s just that their speech didn’t have the prestige of Hastings associated with it.

  5. Seeing way too much Carl Schmitt in these spaces recently.  Luban refers us to Leo Strauss and obviously Schmitt comes through Strauss who comes through the Chicago School as Francis Boyle has noted so many times.  The intellectual lineage for lawfare today is pretty direct.  Deal with it.

    To read Schmitt’s ideas for me is always associated with those black and white photos of the Nazi era.  As luck would have it I was watching a show on the History channel yesterday on the Rise and Fall of the Third Reich with those images over and over.

    It brings me back to Hanna Arendt and the Origins of Totalitarianism and the way all gets sucked into the maw of this friend-enemy construct.  Schmitt and Strauss extract the humanity from the enemy – the killing is the logical next step after that extraction.

    If you combine Schmitt with Francesco Alberoni’s movement and institutions concepts in sociology one can see how Schmittian control of the nascent state and the institutional machine leads ineluctably to death of those who stand against. 

    Yet, Alberoni’s vision is more fluid because he recognizes that there are those who see a contradiction between what the outward state is requiring and what they sense as fundamental aspects of their nature that force them to rebel – attempting to create a new nascent state and affinity to foment a new movement.

    Humans are capable of a reduced view of others – history is replete with that.  As is history replete with efforts not to appeal to this aspect of our baser selves.

    Schmitt’s view of humanitarian law as bracketed war and a purely European construct is another example of that European exceptionalism so dear to certain European elites.  As if the entire non-European world was incapable of thinking these ideas in any parts of their history in other parts of the world.

    There is a special place in hell for Schmitt – as I have said before – and he is not rehabilitated for me.  I recognize many are enamored of his vision – just like those vast crowds were in a frenzied state at the Nazi rallies.

    On the History Channel, what I liked was the requirement that the ordinary Germans nearby go into the death camps and bury the dead. 

    Let Schmitt types go into the spaces where the designated enemy are held, tortured, and killed and bury the dead/heal the wounds inflicted.

    It occurred to me also that Schmitt brings me back to the scenes in New Orleans and Katrina of the people outside that stadium being ignored by the rest of the country laying bare a very old friend-enemy equation in this country that goes back to before the founders.  I remember that old wound being rubbed as I watched those people die. 

    Or the person’s being held in the camps in Srebrenica.  To follow Schmitt is to reduce ourselves to being variations on Mladic.


  6. How is it that KH doesn’t understand the meaning of free speech? When the subject of Israel comes up, KH throws logic and thought to the wind.

  7. Zach,

    How, exactly, do I not understand the meaning of free speech?  Some logic and thought by way of an explanation would be most appreciated.

  8. My information is from the following source:


    This account clearly shows that the Dean was in no sense “prohibited” from giving a speech. Various alumni persuaded the Dean to withdraw the Hastings seal of approval. That is, they made use of their freedom of speech to persuade him; they had no power to prohibit his action.

  9. Ed must be reading a different article, because here is what the one he links to says:

    Critics of the school’s March 25-26 “Litigating Palestine” conference, including at least a dozen alums, charged Hastings with endorsing extremist views, and forced the Hastings board — in an emergency closed session the night before the conference — to yank its name from conference materials and prohibit Dean Frank Wu from giving the scheduled welcoming remarks. The conference otherwise ran as planned.

    A university board “prohibits” a Dean from giving a speech, and that is consistent with academic freedom? Really?

  10. Frank Wu is an employee of Hastings and he answers to its Board. Employees do not have a right to say whatever they want in their capacity as employees. Dean Wu can make a pro-Palestinian speech personally (as effectively I said at the start of this discussion) but the Board does not want Hastings to make itself a pro-Palestinian entity, especially, I would think, one of TARI’s sort that won’t even publish a bibliography without calling Benny Morris a liar.

  11. Let’s recall what Ed said:

    This account clearly shows that the Dean was in no sense “prohibited” from giving a speech. Various alumni persuaded the Dean to withdraw the Hastings seal of approval.

    That’s wrong, as Ed’s own article makes clear.  Maybe prohibiting the Dean from giving welcoming remarks was their right, given that he is their employee.  But I don’t buy the personal capacity/Dean capacity distinction in the slightest.  According to that logic, it would be fine for the Hastings board to prohibit Wu from speaking as a Dean at a conference promoting LGBT rights, advocating stronger civil-rights law for minorities, or criticizing the war in Afghanistan.  To say that such prohibitions do not implicate academic freedom because the Dean could participate in such conferences as an academic is wholly unconvincing.

  12. Academic freedom is alive and well at Hastings. Participants were free to air their views. So free, in fact, that they were able to plot litigation strategies for defending academic boycotts. Put another way, Hastings respects academic freedom so much that it allowed conference participants to discuss ways of denying academic freedom to others.

    I can find no statement by the board or Dean Wu that the latter was “prohibited” from making a speech. This idea seems to be pure speculation on the part of those seeking to manufacture a controversy. A reporter’s use of the word “prohibited”, without identifying a source, signifies nothing.

    In any event, the distinction between a person acting in their capacity as dean, and one acting in their capacity as professor is reflected, among other places, in the AAUP’s 1940 Declaration on Academic Freedom and the ABA’s rules regarding the accreditation of law schools.

    Qua dean, a person answers to the board and executes the policy of the university. Qua professor, they enjoy academic freedom but must like every professor “make every effort to indicate they are not speaking for the institution”.

    Nothing I have read suggests that Professor Wu had ever planned to make a speech or otherwise participate substantively in the conference. The fact that Dean Wu did not welcome conference attendees on behalf of the university simply reflects the board’s policy not to endorse the anti-Israel, pro-BDS tenor of the conference.

    Those concerned about academic freedom really ought to be speaking out against the academic boycott that participants at the conference seek to defend. The idea that independent universities are to be identified with the policies of the countries in which they are located is plainly a threat to the concept of academic freedom, as is the idea of imposing political tests on academics and universities.

  13. “Maybe the newspaper is making it up” — now there’s a powerful defense of what the board did!

  14. For the record, as I have said on the blog before, I am categorically opposed to an academic boycott of any Israeli university that is not located in the West Bank or Gaza.  What Hunziker doesn’t seem to understand is that academic freedom has to be protected even when its use threatens the academic freedom of others.  It’s no different than protecting the free speech of those who would deny others the same right.

  15. If there was any evidence that the board interfered with Frank Wu’s academic freedom I’m sure we would all speak up.  KJH points to none.

  16. Yep, nothing says academic freedom like a law school board prohibiting the Dean from speaking at a conference about Palestinian rights in response to protests by Jewish alumni.

  17. Frank Wu hasn’t said the board interfered with his scholarship.

    This is his only statement on the matter that I know of: http://www.uchastings.edu/media-and-news/news/2011/03/statement.html

    Readers can judge for themselves if hidden within that statement is a coded message that the board stopped him from making an academic contribution at a conference.

  18. And another Hunziker distortion — now academic freedom is only about “scholarship”; it has nothing to do with a Dean being able to give a welcoming address at a conference with a controversial topic.

    But, of course, this is the same person whose original defense of what the board did involved questioning whether multiple news reports got the story right.  So the desperation is fairly obvious.

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