Mar 082018

Law schools have increasingly been offering courses in alternative dispute resolution.  I had the privilege of taking such a course during my semester abroad in Germany, in a class with students from all over the world.

The reason law schools have been including such courses in their curriculum is because in certain circumstances an alternative form of dispute resolution can be more effective than a traditional courtroom action.  The question, though, is which circumstances,

I wrote the following for my ADR class during that semester abroad in an attempt to answer that question.

In thinking about the merits of alternative dispute resolution, I’m reminded of my own experience with it, an experience which exemplified some of the plusses and minuses of these extra-judicial conflict resolution techniques. Continue reading »

Oct 122017

Robert Kagan had an op-ed in the Washington Post lamenting the state of the Republican party as the party of Trump. It was interesting and principled food for thought, which is also the opinion I drew when I heard him speak as a law student. He had come to speak at my German law school during my semester there, and what follows is a lightly-edited version of what I posted after hearing his comments. Originally posted November 19, 2005, and interesting little time capsule, especially in light of Brexit.

As part of a continuing series of “Transatlantic Lectures,” Bucerius invited Robert Kagan to speak last week. I admit, I was wary of his presentation going into it. He had been described to me as being a Neocon, and therefore someone whose world views I would often find quite frightening in their obstinate and isolationist arrogance.

But while I think his argument requires rebuttal, I don’t think it requires excoriation. He didn’t present himself as the kind of Neanderthal conservative who threatens allies with “either you’re with us or against us” admonitions, or rushes to rename foodstuffs in protest of those who would resist acquiescing to all of America’s wishes. Rather, Kagan impressed me as one of those all-too-rare Americans who understands there is a world out there beyond our borders and actually has made an effort to get to know it. Moreover, he recognized that Americans and Europeans are different, and that there are very good reasons – historical and cultural – for those differences. He didn’t therefore rabidly insist that Europeans do things the American way, but at the same time, his argument nonetheless recommended Europe be more like America in a key way: by becoming an equivalent military power. Continue reading »

Jul 102017

With so much news coming out of Hamburg this week I decided it was time to repost what I’d written about my visit to Neuengamme, a concentration camp not far from the city.  I had spent several months in Hamburg as a law student, and this was a field trip organized by the law school.  The following, a combination of two posts originally written in October 2005, joins other items I’ve reposted from the blog I kept back then that reflected on my time there, particularly with respect to what it was like being Jewish in Germany and learning about the history of Jews in Germany

Keeping the holidays around here is challenging. My days are particularly packed, with more classes than usual as two of them wrap up this week. Yesterday began with Conflict of Laws, followed by Comparative Torts. Then almost immediately thereafter many of us boarded a bus for a field trip to the Neuengamme Concentration Camp.

It was one of those gorgeous fall days the holiday often falls on, sunny and pleasant. But we spent it in an environment whose modern serenity belied its past. Although this camp wasn’t dedicated to the extermination of Jews, per se, many did perish there (along with many, many others). On an occasion of contemplation, it was quite the place to spend the afternoon. Continue reading »

Jul 092017

I’ve been resurrecting posts from my old blog.  Tonight I found this sad tale from my second year of law school.

If I am crankier than normal, and I think I probably am, it’s not without reason. Case in point: my odyssey last night.

As I complained earlier, I have been in technology hell with all of my devices breaking.  All forward progress has ground to a halt while I take care of fixing the basic technological infrastructure underpinning my life. To that end I am fortunate to have a helpful friend, one who previously loaned me a laptop and last night offered to loan me a new router. Great. The problem? He lives in another dimension: there is no direct way through time and space to get to Newton, Massachusetts. The street plan looks to have been designed by M.C. Esher. Roads that seem parallel intersect. Streets that look like they connect to major thoroughfares instead double-back on themselves at the last minute into one-way mobius strips. Forget having a sense of direction: it will be of no use to you in Newton. Continue reading »

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Jun 252017

I decided to re-post this post from September 2006 so I could link to it from this new post.

I was glad that on this most recent cross-country trip I took the time to actually see the country I was crossing.

The day I spent in Indiana turned out to be quite interesting. My friend and I went to a small country town where they were having a fair. But it wasn’t a big fair, with midways and carnies. It was a small affair, with lots of local vendors and stalls selling local crafts and foods. It was also interesting because the community is full of Mennonite and Amish people, who were all represented there, but not “on display” for tourists as they might be in more well-known “Amish Country.” I’m not sure there were any tourists there at all, actually, apart from us. It was just a corner of America, being itself, that we got to visit for the day.

I got to visit a few more corners by detouring up to I-90 and going through Wisconsin, Minnesota, and South Dakota. Especially South Dakota. Which happened to be where I was on the 5th anniversary of September 11. Where better to spend a day of American self-reckoning than smack in the middle of it? But the difference was striking: just a few days earlier I had been in lower Manhattan, within Ground Zero itself even, on one of those beautiful, clear, almost-Fall days like it had been on the day of the attacks. A sober energy was beginning to percolate within the streets, as people got ready to face the somber occasion of remembering the awful day their neighborhood changed.

By the time that day came, I felt like I was a world away, in the near-emptiness of South Dakota. I began the morning leaving Sioux Falls, driving through the vast flatness while listening to Native American chants on the radio. By lunchtime I’d reached the famous Wall Drug, perched at the mouth of the Badlands national park. I paid the $15 and drove through them, all the while listening to NPR’s urban-broadcast coverage of the 9/11 remembrances and resulting state of the world. In the empty, sunny stillness of the Midwest the day’s activities in New York and Pennsylvania may have seemed a world away, but it was all still in these United States.

Exiting the area in Rapid City, from there it was time to head up into the Black Hills. Along the way I saw a lot of interesting wildlife: prairie dogs, mountain goats, and the most American of all animals: the turkey. Climbing up through the granite turrets of the hills I suddenly saw, there around the bend, Mt. Rushmore and its quartet of great American leaders. George Washington was particularly striking, with a small yet confident, fatherly smile on his lips that seemed to say, as he gazed out eastward over this great nation on this sad day, that, despite it all, we would be okay.

Jun 252017

I realized in writing a post today that I wanted to link to this one, so I’ve resurrected it. Originally posted August 3, 2003, about my drive out to start law school.

As if relocating across the country weren’t emotionally stressful enough, the moving itself caused all sorts of hassles and elevated blood pressure. It took two days and several emergency trips to UPS (too much stuff!) to pack up my car to the gills (where on earth did I get all this stuff????) and then four days to then drive from Santa Clara, CA to Boston, MA.

The most interesting day was probably Day 2 when I went from Salt Lake City to Omaha. First I nearly failed Basic Roadtripping 101 when I almost ran out of gas. That morning when I left Salt Lake there seemed to be enough left in the tank to get me to Evanston, WY, where I had planned to stop and get breakfast. It’s the border town, only 60-70 miles away, and I figured it would be more efficient to hit the road right away and get the gas when I’d be ready to eat. My car generally gets great mileage so I didn’t think the extra miles would pose any problem at all. However, I neglected to calculate the loss of fuel efficiency that comes from lugging a car hauling a gazillion pounds of stuff (approx. 1/2 gazillion kilograms for you metric types) up the northerly spires of the Rocky Mountains. As I was climbing the gas gauge started to drop precipitously low. When I passed the sign indicating 22 miles to go, I figured I was toast. I took out my cell phone and started watching the mileage markers so that I could give AAA precise location information about where to find me when I inevitably stalled out.

And then, over a ridge, like an oasis in a desert, was the first exit in Wyoming. With a gas station at the end of it. I nursed my car down the exit ramp and pulled up to the pump. I’ve never been so happy to be at a gas station before. Had you been there you would have seen me lovingly pat my dashboard and say, “Good car! Very good car!” Next you would have seen me slap myself upside the head for being such a moron.

Gas purchased, and a new personal policy passed to always top off the tank any time I stopped, I headed off across the vastness of Wyoming. I have a book called Rising from the Plains which is about the geology of Wyoming. Apparently the state has some very interesting geological features, some of which are visible from I-80. Unfortunately, while the state may be interesting from a plate-tectonic standpoint, it’s not all that interesting from an automotive touring standpoint. Until about Laramie when the terrain gets more varied with buttes and valleys chasing each other to see which can be the highest.

Heading through the hills surrounding Cheyenne, the friendly fluffy rainbow-bearing clouds from the day before had started ganging up into some nasty looking storm clouds. As I descended out of the hills into Nebraska, I saw in the rearview mirror dark charcoal skies with a lightning bolt slicing through to the ground. Growing up back East I’d seen thunderstorms build up before, but they’d tended to swell up more slowly as they inhaled all the humidity. Whereas in Nebraska follicles of moisture careened into vengeful atmospheric monsters with great speed and viciousness.

When I was a little I had one of those irrational childhood fears of thunderstorms, probably because they were loud. It was only when I grew up and found out that thunderstorms could actually be dangerous that the fear turned more rational. So as raindrops started dripping onto me I began trying to outrace the storm. And good thing too, because as I happened to glance off to the right I saw a swirling patch of dirt. It looked a little bit like the clear air dustdevils I’ve seen while driving through the Nevada desert. But it was bigger, and it was connected by a ghostly funnel silhouette to a big nasty cloud up above.

I’m no idiot, I saw what happened to Dorothy. Tornadoes cause all sorts of havoc and I wanted nothing to do with this one. Fortunately, it was heading southeast and I was just heading east so it posed no threat to me, other than the inherent danger that comes from zipping down a highway while looking at a tornado.

For the most part, I managed to avoid other calamitous weather. The only rain of any significance fell just as I was crossing the Hudson River and ended by Connecticut. I was originally going to cross at the George Washington Bridge at the eastern end of Route 80 so that I could say I’d gone from Bridge to Bridge (Bay Bridge to GWB). But then my dad told me that 80 technically stopped in Teaneck, NJ, and there just didn’t seem to be anything romantic about saying I’d driven from Bridge to Teaneck. Disillusioned and tired, apathy took over and so in Pennsylvania I veered off to I-84 instead.

However it’s too bad I didn’t drive through New York City, because with all of the beautiful flitting butterflies smashed on my windshield I could have used the services of those famous Squeegee Men.

Jun 202016

In light of today’s Fourth Amendment-eroding Supreme Court decision in Utah v. Streif, and Justice Sotomayor’s scathing indictment of it:

The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting
you on the warrant. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.

I thought I would repost something I wrote in law school about an earlier Supreme Court decision, Hiibel v. Sixth Judicial District Court, that ran roughshod over the idea that people might have a constitutional right — and need — to refuse to identify themselves to the police. Given, as Justice Sotomayor notes, that such an identification can lead to other incursions on one’s liberty I think it’s worth remembering some of the earlier jurisprudence that has brought us to where we are with this case today.

(Originally posted 3/23/04. I’ve edited the writing slightly now to make sure the point I was trying to make back then are more clearly conveyed now, but I have not otherwise edited it for substance. While today I would tend to frame my legal analysis slightly differently, I think the rough take of a 1L still captures valid concerns that today’s ruling exemplifies and exacerbates.)
Continue reading »

Jun 082016

Seeing news that Israel has named a street after Chiune Sugihara, I thought I’d repost what I wrote about him in law school:

There was another excellent show on PBS this evening on Chiune Sugihara, a Japanese diplomat in Lithuania who wrote visas for thousands of Jewish refugees during World War II. He suffered for his actions personally afterwards – his foreign career effectively destroyed as a punishment (a true shame, given his remarkable linguistic and cultural acclimation skills) – but today thousands and thousands of people and their descendants are alive because of his sacrifice, to risk sanction from his superiors and write all those visas.

The show was also interesting to me on another point: examining the relationship between the Jews and the Japanese. In particular it explained a comment I had heard in my family that previously had no explanation.

I’ve written before about my great-grandmother’s brothers who had escaped Russia in the early 1900s by running east to China. There they settled in Harbin, a city full of expatriate Europeans, including many other Jews. They thrived there, even through World War II. And that was the comment – that the Japanese treated the Jews very well. Unfortunately during that period the Japanese army treated the Chinese people very poorly, which is why there was such confused marveling over why my relatives had no problems themselves.

There seems to be two explanations: one, that there were industrialists in Japan who actively wanted to settle Jews in China, to develop industry using their skills and education. In fact, at one point the Japanese, at the urging of these industrialists, offered to Jewish leaders that it would accept all the European Jewish refugees, with or without passports, so that they could settle in Japanese territory. This offer, however, was unfortunately declined by an American Jewish leader in the misplaced hope that if the European Jews had no viable options left, Roosevelt would step in and finally let them come to the United States and England would let them enter Palestine. Sadly neither of these things came to pass. Boatloads of refugees were turned back at Palestine, many to end up immediately shipped off to concentration camps upon return to Europe, and largely at the urging of anti-Semites in the State Department, America’s borders stayed shut as well.

The other explanation stems from a conversation between Japanese officials, by then allied with the Germans, and a Jewish leader representing the large population of Lithuanian refugees who by now were temporarily settled in Tokyo. Their numbers and the irregularities surrounding their immigration were cause of some concern to the Japanese officials, and Germany was heavily lobbying for Japan to adopt its policies of Jewish extermination. So the Japanese officials asked the Jewish leaders why they should not abide by the Germans’ wishes.

“Because we are all Asians,” was the response. You from the eastern side in Japan, and we from the western in [Israel]. Besides, when the Germans talk about the population they aspire to have, it is all Aryan. It’s all about blonde hair and blue eyes, which the Japanese don’t have. Believe us, they said, when they’re done with us they’ll come for you next.

Whether this explanation was the reason or not, the Japanese chose to resist the Germans’ urgings and let the refugees stay. And Mr. Sugihara was eventually vindicated by history, being honored by the survivors, the State of Israel, and also his native Japan. In Israel, like Schindler, he is known as a righteous person, and more people should know of his deeds.

Originally posted May 5, 2005.  I then had a sad update about his widow here.

Jan 082016

In my third year of law school I did a semester abroad in Germany. It was a poignant experience, particularly as someone Jewish, to go invest in a place that so recently had been so unimaginably evil to people like me. The school itself (Bucerius Law School) was not unmindful of this history. For instance, at one point it took us on a fieldtrip to Neuengamme, a concentration camp in a nearby Hamburg suburb. And at another point it put on a screening of Jud Süß, one of the Nazi propaganda movies from the 1930s.

What with recent discussion about Mein Kampf and Anne Frank’s Diary entering the public domain it seemed like a good occasion to revisit what I wrote back then about the movie. It seems particularly important given similar demonization I’m hearing in Germany and beyond about the Muslims in their midst.

Below is the original blog post I wrote in November 2005, and below that the comment the post received, which shows that this sort of extreme, xenophobic hate is not entirely in our past. But it’s only by freely talking about that past that we can keep it from plaguing our future.
Continue reading »