AI Is Here, and Law Schools Must Decide What They Are

Throughout the week I’ve been wanting to blog about various things I care about: the proliferation of true crime podcasts and the role they play in exonerating people; the alarming rise in botched executions and what that might mean for the death penalty; the reentry promise of SB 731 and its imperfections; the looming elimination of the crack/powder cocaine sentencing disparity; some new alarming information about COVID-related neglect in jails; and many other issues. Unfortunately, my whole household was struck by a particularly vicious version of Influenza A, and I’m only now crawling out of a feverish nightmare to finish plowing through a gargantuan pile of exams I must grade. Which is why this week’s emphasis on the rise of AI and its meaning for higher education is front and center in my mind.

It all started, for me, with this Atlantic article, which portended the death of college essays. Everyone around me is playing with AI playgrounds such as this one or this one, asking it to write essays, haikus, recipes, ads, and whatnot. The results are often amusing and quite shocking in how superficially okay they are. My colleague Brian Frye even produced this valiant attempt to get the thing to do a meta-discussion of its own inherent dishonesty. And here I am, about to grade twelve seminar papers (in addition to 90 exams, thank you very much), wondering if I should even bother running them through Turnitin to detect plagiarism. It appears that the new plagiarism tools have birthed new plagiarism detection tools unique to AI, and this is surely not the last move in this game, as the arms race to artificially produce text indistinguishable from a human thought product is bound to get more and more sophisticated.

My first reaction to all this was utter despair and the sense that the human race–or, at least, the subsection of it that includes educators like me–has become obsolete. The singularity is nigh! Our flimsy protections are Asimov’s three laws of robotics! Then I got to thinking and chatting with a few friends.[1]

My point of departure is that I hate plagiarism and all that is related to it in academic work. I can see people borrowing from themselves in the course of closely related projects (kind of like Mozart or Beethoven), but generally speaking, the concept of plagiarism should not be confusing or morally gray. As a colleague[2] defines it, there are two types of ideas in any academic work: those that come from your head and those that come from other places. The latter set has to be properly attributed. That’s basically it.

At the same time, I have serious doubts about the utility of aggressive anti-plagiarism enforcement in law schools, for three main reasons. First, given what we know about the development of adolescent brains, most of the folks we encounter are in their early twenties, when their prefrontal cortex is still growing and developing. That, as we know from a trilogy of Supreme Court cases interpreting innovations in developmental psychology and neuroimaging, is the part of the brain responsible for weighing consequences, resisting peer pressure, and delaying gratification. In my almost twenty years of academic teaching, I’ve seen some people truly change and mature just in the course of the three or four years that I’ve been exposed to them. In one case, I testified on behalf of a recent graduate at the State Bar Court. This guy was involved in a pretty serious case of academic dishonesty in his first year of law school, and when I met him–at the beginning of his second year–he was still rather immature compared to others. But I got to teach him throughout his law school career and was profoundly impressed by how much he had changed during that time. In his last semester with me he was not only contrite about what he had done (y’all already know what I think about expressions of remorse) but also much more mature; had produced a superb piece of original, empirical work for one of my courses; and developed much more sophisticated thinking about social problems. A lot of these cases, even when severe, reflect the sort of immaturity that people can put behind them if the process is sufficiently educational and rehabilitative.

Relatedly, my second concern about aggressive enforcement against plagiarists in law school has to do with the bar’s reaction to law school sanctions for academic dishonesty. A couple of years ago i conducted and published an interview-based study of the moral character determination of the California State Bar. For this project, I interviewed ten people with criminal records who succeeded in becoming licensed California attorneys, a few ethics lawyers that represent people in moral character cases, and the bar officials responsible for these determinations. What I learned (and I’m not sure this is still true, but it was true as of 2020), was that bar officials look at the candidates’ disclosures and their official records, including their law school records, and classify their personal histories into one of four groups according to their severity. Law school dishonesties are generally classified as Level Four, partly because they are relatively recent and partly because they reflect misbehavior that the bar officials think is directly representative of what kind of lawyers these folks will be, ethics-wise. Much as I think that consequences are important, I’m not sure that every plagiarism case merits the complete destruction of a future that a person poured considerable funds, intellectual and emotional effort into, certainly not without very serious forewarning in the law school admissions process and in the first year.

Finally, and perhaps most importantly, I think that our approach to originality, scholarly sparkle, and the use of AI as well as most conventional sources raises serious questions about what law schools are even supposed to be. Many of us in legal academia are realizing, as we make our first steps in education, that our students, overall, are very different from us, and that most of us teach in very different institutions than the ones we ourselves studied in. New faculty hires tend to prioritize people from very few select institutions, with additional prestige-granting characteristics such as advanced degrees, clerkships, or visiting professorships. This means that most of us will be teaching people who want to be lawyers, not scholars. While many of my students are smart, quick thinkers, I rarely encounter people who I think would be a great fit for grad school. Moreover, even those who are well suited for doctoral pursuits are not that excited to incur more debt after three years of law school; rather, they’re pretty eager to enter the job market and start working off their colossal debt. For the most part, these folks are entering a profession in which producing highfalutin’ scholarly works is utterly unnecessary. Yes, they need to be able to write a persuasive brief and a punchy motion to suppress, but they don’t really need to compose lengthy law review articles. For the few that are inclined to do this, we can create a special honors track that requires a scholarly product. We don’t need to demand this of everyone, certainly not at the many schools that don’t feed into legal academia.

So, if I were Queen of the World, these would be my recommendations:

Completely change law school pedagogy away from producing descriptive/critical scholarship to lawyerly problem-solving. Focus the entire curriculum on hypotheticals, simulations, and the like. Forget about conventional lecturing and Socratic inquisitions and spend your time, instead, solving problems in class. I already do this in my big lecture courses. My students receive all the material in the form of readings and lecturettes, such as this one:

When the students show up for class, I spend minimal time explaining the doctrine and lead a quick discussion of critiques and finer points. Most of our time is spent working through simulations in small groups. Often, but not always, this consists of a series of hypothetical problems. Sometimes the students have to negotiate plea deals, write motions to suppress, pick a jury, or use the Federal Sentencing Guidelines to sentence a defendant. I think we get a lot more lawyerly bang for our buck this way. I started using this pedagogy during the pandemic, to liven up the Zoom situation, and have transitioned to in-person flipped classroom, because I truly think this is the optimal way to teach law to people who aspire to be actual lawyers.

Restructure the role of law review editorial staff (that is, if we choose not to get rid of law journals altogether, which I think would be a pretty good thing to do for various reasons.) Students who are not interested in writing notes for the sole purpose of writing notes should not have to write them. They have their hands full editing the submitted works of other folks, which is, after all, what the law journal market is for.

Shift the definition of the writing requirement. Why is it that we ask people who have no scholarly aspirations to produce original scholarship? Yes, lawyers should definitely know how to write–they must learn to write lawyerly work product: briefs, motions, letters to clients, etc. Why not define a few of these basic forms of legal writing and require that, throughout people’s legal education, they tick each box? It doesn’t have to be independent, shapeless work: these products can be assigned as part of lecture courses, clinics, externships, and the like. The added benefit of this strategy is that, when workplaces invariably ask their applicants (our students) to provide a writing sample, the sample will actually mirror what the job expects.

Create an honors track for aspiring academics or, even better, shift aspiring academics to a JSD degree. Sure, there will still be folks who want to be academics, and that’s great. I’ve always thought it outrageous that people can seek academic careers with an educational record that is basically identical to that of their students; that is, that your only qualification for being a teacher is having been a good student yourself (sometimes quite recently.) No other legal academic system in the world works like this, and no other U.S. disciplinary department works like this: students everywhere EXCEPT American law schools are taught by people who have a far more extensive higher education background, far more practice background, or both, than they do. It seems to me that in order to not be “those who can’t do, teach,” each of us in pedagogy needs to bring something very substantial to the table, either in the scholarship or in the practice realms. Given that legal scholars are expected to produce legal scholarship, it’s worthwhile signaling as early as law school that people who aspire to academic careers will be well served by receiving some training in scholarly writing (not what lawyers do for a living! what academics do for a living) and that can be provided, at minimum, through an honors track that requires a piece of traditional scholarship. By making this track both self-selected and selective, we ensure that we don’t have to scan a boatload of papers for plagiarism, because presumably whoever is interested in working in the business of original thinking wants to do original thinking (or perhaps not? but at least detection should be easy with fewer suspects.) Alternatively, let’s encourage people who want to be scholars to pursue a bona fides Ph.D. program (as a joint degree with their J.D.) or get a JSD from their law school (requiring a written dissertation, which could also feed their first few articles and possibly their first book.)

Yes, the singularity heralds some unwelcome news to legal education. But it is a good opportunity to consider what we’re here for and to reinvent ourselves in more relevant ways.

And now I really need to stop bloviating and put a dent in this exam pile. Godspeed!


[1] I’m especially grateful to Paul Belonick, Hadar Dancig-Rosenberg, and Emily Murphy for our conversations about this.

[2] I’m grateful to David Takacs for this crystal clear formulation

In Memoriam: Dr. Tally Kritzman-Amir

My heart is crying. One of the best people I’ve known was prematurely taken from us. My beloved friend Tally Kritzman-Amir, an international human rights, immigration, and refugee law scholar of global renown, was beaten at 43 by a ferocious, aggressive cancer, leaving behind her husband, our dear friend Yoni, and their two young daughters, the wonderful Orr and Shir. She also leaves behind a loving extended family and thousands of friends throughout the world, many of whom benefitted from her selfless, pragmatic contributions.

Tally’s cynical, sometimes dark sense of humor belied a heart of pure gold and an uncanny capacity to find the most practical and effective way to do good in any situation. She devoted precious time to legal and economic interventions on behalf of the most disempowered, desperate people on the planet. A few weeks before her untimely death she befriended Gloria, a refugee from Africa seeking treatment for aggressive cancer in Israel, and successfully fundraised for her treatment. It is so typical of Tally to turn the world upside down even in her last breaths to improve someone else’s lot, to see her own horrific affliction as a gateway toward empathy and connection with others. All this with no fanfare, no social media bullshit, no performance or self aggrandizement whatsoever. Just a pure soul and a perfectly calibrated moral compass.

My family and I had the great joy to be close friends with Tally and her family at Cambridge, where we considered them our family. At every corner of our Harvard journey, she was there, building community for us, gathering items, facilitating annoying errands, looking for housing, and walking me through campus bureaucracy. She was at the heart of a vibrant community, drawing connections between people, her kind heart and razor sharp mind working in concert to connect A’s bounty to B’s needs, always selflessly, humbly, without asking for praise or recognition.

On the very day that she was laid to rest, an Israeli judge approved a visa for a couple of Ukrainian refugees, citing Tally’s work and paying tribute to her goodness and solid principles. When people pass away, I often say, “a great light has dimmed.” So great was the light that shone purely from Tally’s soul that it continues to illuminate the world after her departure. I will miss my beloved friend very, very much and send my deep condolences to Yoni, Orr, Shir, the family and friends, and the entire world, who has lost a fierce warrior of love and belonging.

Flip Thy Classroom!

I’m wrapping up my fourth semester of flipped classroom pedagogy, and I think I have a verdict: it’s preferable to my previous lecturing-plus-discussion model, and even though it’s a lot of work for both me and the students, the benefits are considerable.

The model works like this: In preparation for each class, the students read the materials on my electronic casebook (on the ChartaCourse platform) and watch a prerecorded lecturette I’ve made, which summarizes the cases, offers additional points and socio-legal insights, and provides flowcharts and guidelines for legal analysis. I’m now on my third version of these lecturettes, and I think I’ve managed to produce something of passable production value. Here, for example, is one of the lecturettes of which I’m most proud – the one about out-of-court codefendant confessions:

Because the students come well prepared, I don’t have to spend/waste time on lengthy lectures in class. I go over some of the basic issues, add examples and stories, and answer questions. The bulk of our time together is spent working on problems and simulations in small groups. Usually, the students receive a few hypothetical scenarios, discuss them in small groups, and formulate a solution which they then post to our discussion forum. Sometimes, I’ll create more elaborate simulations for them: this year, we did a two-week plea bargaining exercise, a big jury selection exercise, and a federal sentencing simulation. After the groupwork concludes, we debrief together. This means the students go over each unit of material five times: through the reading, the lecturettes, my highlights, their own independent work, and our debriefing session.

So far, I haven’t been able to coast on lecturettes from previous years, because I had recorded them on Panopto, which is not fantastic, and have had to re-record them from scratch on Zoom. As you can see above, the quality is pretty neat and I can use animation and other tricks to explain complicated concepts. Hopefully, in future years I’ll only have to record lecturettes that update the existing ones when legal changes occur. I’m also quite impressed with the students’ hard work in class and in the small group. This method works very well in a small class in person, and also scales up quite marvelously online.

If you want to flip your classroom and need some help or advice, please contact me! It really is a wonderful way to teach.

Omicron, Sirhan Parole Denial, Academic/Activist Exhaustion: Four Thoughts

  1. Denying parole to aging, infirm people at this moment in time is… maddening. Several journalist friends called me yesterday about Gov. Newsom’s reversal of Sirhan Sirhan’s parole grant. Anyone who has read Yesterday’s Monsters will guess I am not surprised–in fact, I predicted this outcome, which was foreshadowed in his no-on-recall campaign, on this very blog. Just as with Leslie Van Houten’s parole bid, the fifty-year cling to political and optical considerations is jarring: fully rehabilitated people, advanced in years and presenting no risk to society, confined during a time of pandemic spike in prisons, to which they are especially vulnerable because of their age. Maddening but unsurprising. I think I’ve said it all so many times–what more is there to say?
  2. They worried about staff shortages b/c of vaccine mandate. They got staff shortages b/c of COVID. Yes, Omicron in prisons and jails clearly shows that we have learned nothing. But there is one new factor in this wave: a massive infection spike among the staff. Take a look at CDCR’s employee COVID ticker: as of this morning, there are 4,419 staff cases. Most facilities have more than 100 sick staff. Recall that the opposition to Judge Tigar’s vaccine mandate–in CCPOA’s appeal, the Governor’s supporting brief, and the Ninth Circuit’s decision to stay the mandate–was that vaccine requirements could lead to mass resignations and a difficulty in staffing prisons. I’m assuming that the irony of having to staff prisons when the staff sickens by droves is completely lost on everyone, so I feel compelled to flag it: for exactly the reasons CDCR and CCPOA state, it is impossible to run a prison in which wide swaths of the staff knowingly render themselves potentially unable to work. If allowing medically irresponsible decisionmaking among employees is a priority, something must give–and the obvious corollary (I’m so tired of saying this again and again) is: we must incarcerate far fewer people than we do because we cannot provide minimal, constitutionally compliant care for them under current circumstances.
  3. No good deed goes unpunished #1. Everyone in academia is exhausted, worn, burned out, just like yours truly. As in Tolstoy’s opening for Anna Karenina, there are infinite variations to the unhappiness, but the aggregate effect is the same: people trying to keep afloat by teaching their classes and having no bandwidth for anything else. I’m experiencing this on both sides: solicitations to review, to participate in panels, to assess grants, to do this or that, are flooding my inbox and I’m overwhelmed, just like everyone else. At the same time, as the book review editor for Law & Society Review, I’m finding it difficult to get reviewers and, when I do, the reviews arrive late or not at all. I get it. I really, truly do. The effort to keep the giant machine grinding beyond the essential components of the job, in the face of all THIS, is bewildering. It occurred to me that one way to help a little bit would be to compensate (not lavishly, but reasonably) for people’s efforts in this direction. Peer reviewing an article? Cash. Supervising a student’s independent work? Cash. Heavy-load committee? Cash. Panel appearance requiring preparation? Cash. This would be especially wonderful for the folks who are trying to write their way out of adjuncting while teaching at several institutions. Many of us, even in these high-prestige occupations, suffered a financial blow; many of us have spouses who had to quit or restructure their jobs to provide childcare, or have had to do that ourselves. Money is important in itself–it’s how we afford our lives–and it would also signal some recognition and gratitude for our efforts.
  4. No good deed goes unpunished #2. Speaking of lack of recognition and gratitude, this morning’s L.A. Times features the story of Patrisse Cullors, one of the national leaders of Black Lives Matter, who had to quit her position and regain her mental health in the face of threats from without and incessant critique from within that made her life a misery. I’m in a variety of activist scenes because of my work and I know exactly what she’s talking about. There is something very unhealthy, very rotten, in how we manage interpersonal relationships in activist spaces, and the unbearable ease of vomiting negativity and mobbing people on social media is enough to break anyone’s spirit. I would really like to create a sanctuary for exhausted activists and advocates–a place where people can come refresh their spirits and take care of themselves. Our movements for change will not survive if we continue treating each other like trash.

Teaching Crimmigration to Criminal Procedure Students: Lessons from the First Year

My advanced criminal procedure course is, as far as I know, the first and only criminal procedure course in the U.S. to include a crimmigration unit. Following a formative semester as a visitor at Harvard, during which I audited Phil Torrey’s terrific crimmigration course, I decided that this was an essential addition–this blog post, which I wrote at the time, explains why.

At the time, I hypothesized that there were knowledge gaps in immigration, which were not completely closed since the Supreme Court’s decision in Padilla v. Kentucky (2010). I was not the only one; in this piece, Gabriel Chin discusses the professional toll that Padilla advising would take on defense attorneys, who would now have to specialize in immigration law. Even in Padilla itself, Elena Kagan–then the U.S. Solicitor General–spoke about her concerns that an entire cadre of professionals would now need to acquire expertise in an adjacent (and not particularly easy to master) field.

True, Padilla did not require defense attorneys to become full-fledged immigration law experts. It only required them to advise clients of the immigration consequences of their conviction if those were clear. The problem is that one needs to know at least something about immigration law to even identify the appropriate statutes (for example, is the person admitted or not admitted to the U.S.? in the former case, the law is in INA §237; in the latter, in INA §212.) You can’t know whether the answer is clear without understanding what the question is, and that in itself requires expertise. A big part of the wisdom, from a defense attorney’s perspective, is having the basic skills to understand whether the immigration determination is even within the attorney’s wheelhouse.

Since Padilla was decided, public and private criminal attorneys have adopted a wide range of approaches to close the knowledge gap. For the purpose of creating my module, I assembled two focus groups of friends from various areas of practice. Beyond two immigration experts (an immigration law prof and a lawyer at an immigration rights nonprofit) I had three prosecutors, one appellate attorney, three public defenders and two defense lawyers in private practice. Before practice-teaching them the modules I created, I asked them where they got their immigration law expertise. I got quite a variety of answers:

One prosecutor said that their office took immigration consequences into account when charging; they had an immigration unit staffed by experts. The other prosecutor said that the D.A. ignored all immigration matters and instructed them to proceed as if immigration consequences did not exist. Out of the defense attorneys, the appellate lawyer was unfamiliar with the field (this is unsurprising, as appellate lawyers would only rarely encounter it.) The bigger, urban public defender offices had immigration units in-house, staffed by experts. In one rural public defender’s office, one person at the office specialized in immigration law and became the office’s unofficial go-to “expert.” In another rural office, everyone learned a little and called immigration nonprofits when they needed advice. The private attorneys were lost at sea and would use published materials from nonprofits when advising their clients. Everyone professed great ignorance and panic at being entrusted with counseling clients on immigration consequences.

The focus groups conversations convinced me that there is great need to add the basics of crimmigration to criminal procedure courses–at least the advanced bail-to-jail courses that are taught to people seriously contemplating criminal justice careers.

What to teach

In shaping the curriculum, I consulted with Phil and with my colleague and friend Tally Kritzman-Amir on what to teach. I decided that the students needed to know what what would touch on their criminal practice (and if they wanted to know more about immigration law, they could take a specialized course.) As criminal attorneys they are most likely to encounter crimmigration when advising clients whether to plead guilty or when negotiating charge bargains, so they would need to be familiar with the most popular removal grounds–aggravated felonies, crimes of moral turpitude, and some of the specific removal grounds–and acquire the skill of ascertaining whether a particular criminal conviction satisfies any of these. Many interesting crimmigration topics, including a detailed history of the immigration code, the immigration removal procedure, detention and bond, and immigration protections, were left out of the curriculum. To facilitate learning, I broke the crimmigration unit into three modules:

Module 1: Background to crimmigration (including Padilla and science-based readings refuting the immigration-crime nexus and examining the emergence of IIRIRA and today’s removal grounds); The admissibility doctrine (distinguishing between admitted/deportable and non-admitted/inadmissible noncitizens, defining “conviction” under immigration law, knowing the consequences of these definitions and distinctions); the categorical and modified-categorical analysis (the basic analytical tool the students would be using in Modules 2 and 3.)

Module 2: Aggravated felonies (explaining what generic offenses are., focusing on the categories of “crime of violence” and “trafficking in a controlled substance”, and highlighting the difference between elements of a generic offense and circumstance-specific elements, such as loss to the victim.)

Module 3: Crimes of moral turpitude (explaining the category within and outside the context of immigration, practicing some cases); the specific grounds of drugs, firearms, and domestic violence

The choice to front-load the mechanics of the categorical analysis reflected the fact that, of all the material I teach in the course, this would be one of the most difficult skills to master, in no small part because the federal removal grounds are so thin, vague, and poorly drafted, and state law can so often be overbroad and abstruse. This was also the reason I chose to sequence the entire crimmigration unit after teaching double jeopardy and sentencing. I reasoned that, at this point in the course, the students would have mastered the art (hopefully taught to them in 1L criminal law) of breaking an offense into its elements. Before teaching double jeopardy, I provided them with a prerecorded refresher on elements of the offense, reminding them that this skill matters beyond substantive criminal law. This way, prior to studying the crimmigration unit, they would practice this skill when determining whether two offenses count as the “same offense” for double jeopardy purposes (under Blockburger) and when determining whether a particular fact must be alleged in the charging document and found by a jury beyond reasonable doubt (under Apprendi.) These two topics would also serve as a rehearsal before learning the categorical analysis and make it more comprehensible.

A note on terminology

The first question I faced was what to call the new unit. I automatically gravitated toward the term “crimmigration”, popularized in Juliet Stumpf’s seminal article. The term has gained considerable traction, becoming the title of César Cuauhtémoc García Hernández’s book and eponymous blog. But then I received a thoughtful note from a colleague who explained that, when Stumpf adapted the term, it was being used in white nationalist/neo-Nazi circles with racist and xenophobic connotations. Its portmanteau construction can also be seen as reinforcing a particular set of suggestions about immigration and criminality that we seek to reject–namely, that there is a nexus between immigration and criminality. My colleague suggested the colloquial alternative “crim-imm”, or the clunkier “convergence between immigration control and crime control” (which reflects, quite well, Stephen Legomsky’s wonderful piece about the asymmetric convergence between the two fields.)

My colleague’s comments were well-taken, and I gave them a lot of thought, but finally decided to keep “crimmigration” as the unit title. There’s value in introducing students to the field by the name the field is known, so that if they seek to know more, it’s accessible and available to them. I also think that terminology isn’t static–it changes over time, and there have been multiple examples of derogatory terms being redeemed and put into empowering use by the people they sought to oppress.

Which brings me to the second issue. Immigration law currently uses the term “alien” to refer to noncitizens (here’s a CIS primer on definitions). Several students emailed, feeling jarred by the statutory terminology, saying it sounded “racist” (I think they meant xenophobic or dehumanizing.) I know this sentiment is shared by many, to the point that the Biden Administration is poised to change the term. I confess that I’m not an enthusiastic convert to the terminology obsession, which does not show any signs of abating. I get it–I’m not stupid–words can create reality. But we’re imbuing words with much more power than they have, I think, and this constant cycle of the linguistic washing machine is diverting attention from more important matters. It reminds me of how, as a child, I heard adults around me say “she has a bad thing… they found something…” treating the word cancer as if it was Voldemort. If a horde of dedicated, progressive-minded Biden officials do a “find + replace” function on the immigration code and replace all instances of “alien” with “noncitizen”, but leave all the removal grounds intact and continue to deny basic Gideon rights to people facing permanent banishment from the country, the enlightened terminology is not going to cheer me up. And given that the zeitgeist is all about certifying only the oppressed for speaking about their own oppression, I am happy to tell you that, prior to my naturalization in 2015, I was an “alien” for fifteen years–an alien student, a nonresident alien with extraordinary abilities, a resident alien–and I always found the term humorous and not dehumanizing at all. If foreigners are dehumanized and marginalized in the United States–and they absolutely are–it’s not because of what the INA calls them; it’s because of what we are misled to think about them. Nationalists were not born with the term “alien” at hand. “Alien” means foreign; it was then borrowed to describe extraterrestrial life. Whatever “they” took, “we” can reclaim, for whatever value of “they” and “we.” In class, I use “noncitizen” when I talk (or, when relevant, “lawful permanent resident” or “visa holder”), and “alien” when I’m quoting legislature, and I leave it at that.

What to read

For this course, I use an electronic casebook hosted by ChartaCourse, which gives me great control ver my materials. I assigned a bit of Legomsky’s article, sections from the INA, and some key cases. The selection of cases presented some challenges, though. The categorical and modified categorical analyses, which are the cornerstone of crimmigration, were established in federal cases, Descamps and Mathis, both of which deal with portions of the Armed Career Criminal Act (ACCA.) This presented a dilemma. On one hand, I wanted the students to know that the categorical analysis will come in handy in a variety of federal legal contexts; on the other, I didn’t want to confuse them and muddle the issue by making them read cases that are not about immigration. I opted for omitting Descamps and assigning only the portion of Mathis that explains the analysis.

As to the rest of the cases, I had to be quite selective and a harsh editor. The cases come from various federal courts and from the Board of Immigration Appeals (BIA), and they often involve various issues that pertain to the immigration side of the case, e.g., adjustment of status issues or removal protections. For the limited purpose of criminal practice, the students don’t need to know that. There are also cases that deal with interesting but arcane immigration law sections, and the choice I made was to focus on the common deportation and inadmissibility grounds. I can already see how making the choice to teach these materials will require keeping abreast of the information in a field adjacent to my own with its own precedents, etc., but there are blogs and other good people working on this, and honestly, after Padilla, I do think it’s our responsibility to teach this.

Finally, my materials include one of the best helping tools for criminal lawyers: the ILRC reference table and notes. It is detailed and trustworthy but, as I found, not exhaustive. I’m trying to teach the students not to rely on the table as the be-all, end-all of crimmigration (even though it’s very useful to have on hand) in the same way that I was taught, when I learned statistics, how to calculate F-values and t-values by hand while also learning STATA. There is immense value in doing the exercise by oneself, and I wanted to put people on the path to proficiency.

Crafting problems

Since the second semester of the pandemic, I transitioned my classes to a flipped classroom model: the students receive readings and prerecorded lecturettes in advance. In class, I go over the basics, and the bulk of the time is devoted to solving problems in small groups. Oftentimes, my problems are shaped after real cases. This proved to be a bit tricky in crimmigration. The cases are very complicated and require serious paring down. They are also often BIA cases, which means there are lots of adjacent, ancillary issues to be resolved on the immigration front. This means the hypotheticals need to be carefully edited, and that the ones based on real cases cannot be the first problems that the students solve. I have had to come up with simpler, two-liner problems that the students solve, and then graduate to problems based on recent cases.

Basing the problems on real cases also presented a problem involving the hermeneutics of immigration law. Because removal grounds are so generalized and vague, and because it is difficult to tell, just from looking at a state statute, whether it is divisible or not, there’s an abundance of caselaw, precedent, and courtroom documentation that needs to be looked at to ascertain how to resolve the problem. In the context of a classroom exercise, it is essential that all the information the students need be within the four corners of the problem. So that, too, requires attention in fashioning the problems. And, of course, working through these hypotheticals can be frustrating to the students, because it is ultimately not where the heart of their practice will lie, and it requires them to visit an entire different world of legal meaning-making. Which brings me to the heart of the matter.

The heart of the matter

I think the frustration and incredulity that the students might encounter when studying this material comes from a pretty understandable source: after all, I am essentially teaching them how to twist and turn their main occupation to bypass the perversion that is immigration law. Rather than looking at what a defendant did and charge them with that, they now have to think ten steps ahead, consider what the feds might do, and craft the whole narrative of the case away from the truth if they are trying to avoid immigration consequences.

What mitigates this frustration, though, is the other component at the heart of the matter: I kept banging the same drum again and again in class–the fact that, across all places, crime categories, and legal statuses, immigrants commit less crime than the native born. I usually deeply dislike facile, oversimplified slogans, but in this case there’s robust social science supporting that, and I had to talk about that again and again because the perception of an immigration/crime nexus is incredibly pervasive and very resistant to modification–more resistant than any other myth of immigration. I think the students might feel better about learning how to perform this analysis if they know that the purpose is to prevent situations in which ancillary, collateral consequences eclipse the actual criminal process and frustrate its goals.

Stressing the moral imperative to take this so-called externality into account in criminal lawyering is important for another reason. That the categorical analysis is technical and ignores the facts of the cases creates the risk that class will become a glib game, akin to the fantastical hypos that are often part and parcel of teaching 1L criminal law. The somber, urgent quality that accompanies the perceived domestic crises (the prime example is the relationship between police departments and communities of color) can be absent from this unless personal stories of people are brought forth. And the absurdities need to be highlighted for people to feel that what they are doing is not just an intellectual exercise of overlaying one offense on top of the other, but a valuable effort to save families from falling apart.

Striking the right balance

Toward the end of the third module, I asked my students whether learning this material made them more or less confident about their ability to do this. Responses were mixed (even though they knew nothing about this analysis before taking the unit!). I’m not sure that’s a bad result. On one hand, per Padilla, you want the students to feel empowered to offer this kind of advisory to their clients–it is their constitutional duty. On the other, you don’t want them to be overconfident about their ability to clearly predict the immigration consequences of everything under the sun. In this respect, Padilla is too optimistic about the ability of a criminal lawyer to tell a simple crimmigration case from a complex one. Immigration law is ever-changing, very responsive to the blowing of political winds, and what my students are taught about immigration law might not be good law under a new administration. Rather than have them freeze in panic, I would like to empower them to take action: call an immigration lawyer or a nonprofit and consult. Because this isn’t going to be sustainable for every lawyer/client, I think that ultimately the answer to the problem of advising noncitizen clients should be a combination of two factors: the emergence of law school clinics whose job is to offer Padilla support to public and private defense attorneys, and the establishment of an excellent MCLE credit network that keeps criminal lawyers abreast of pertinent developments in immigration law.

If you are a criminal procedure professor who read this, feels inspired, and wants to teach my bail-to-jail course with my immigration materials, contact me (or contact ChartaCourse.)

Noblesse Oblige and the “Dr.” Controversy

On my second day of law school, in 1992, Prof. Mordechai Kremnitzer, one of the most admired and respected civil rights academic heroes in Israel, came to our first-ever criminal law class, and said to the 300 first-year students in the lecture hall, “please call me ‘Mota'”. I thought to myself, there is no way on Earth I would ever bring myself to call you ‘Mota’ and you know it, and proceeded, in the few occasions that I summoned the courage to talk to him, to linguistically pretzel around the need to call him anything. Last year I sent him an email supporting his activism. It was the first time I referred to him by his first name. I was already a tenured professor with a named chair, and even so, I hesitated and reworded the email five times.

Like pretty much every sensible person, I was disgusted and reviled by Joseph Epstein’s condescending, ignorant opinion piece in the WSJ asking Dr. Biden to stop referring to herself as “Dr.” because he found it fraudulent, or in bad taste, or whatever (no need to read that drivel; for takedowns, see here, here, here, and here.)

Given the awfulness of the COVID crisis, I’m surprised how something this trite has rankled me so much, but I can’t get it out of my system, so here goes. Lots has already been said about this, most of which I fervently agree with, so just one comment, if you please, about one of the less explored aspects of this. Consider this fantastic poem by Susan Harlan:

Image may contain: text that says 'SUSAN HARLAN MY FIRST NAME No, you can't call me By my first name, And yes, I know that A male professor Told you that titles Are silly Because a certain genre Of man Is always dying To performatively Divest himself Of his easily won Authority.'

I’m a member of the Law and Society Association, the American Society of Criminology, the Western Society of Criminology, the Society for Empirical Legal Studies, and an occasional attendee at a bunch of gatherings of other professional associations, and I see this “certain genre of man” and this sort of dynamic all the time at every professional meeting I attend. I don’t need to name names, because if you’re an academic, whatever field you’re in, you’ve seen this, too: The young folks, the folks of color, the younger womenfolk, and especially our colleagues who spent a fortune flying to the conference from places like Brazil or South Korea show up in formal, elegant outfits, with a flawless deck of PowerPoint slides and deliver meticulously prepared remarks to a room with three audience members. The guy who is a distinguished professor at Amherst College or Yale or Berkeley or Stanford and considered a luminary in the field shows up in wrinkled dockers, his sockless feet in crocs or Birkenstocks, maybe even a quirky hat perched at a rakish angle, ad-libbing without slides at the well-attended plenary about some idea he had last night.

I submit to you that the folksy, humble, down-to-earthsy, modest, approachable spiel of the dude who has been elevated to knighthood is just as performative as the bowtie, suit, call-me-doctor spiel of those who have not. I don’t mean it’s disingenuous or calculated (many of these shabby dudes are truly lovely people); I merely mean it is a self-presentation of class within class. The person who floats above and beyond the need to hustle, impress, and–most importantly–be taken seriously, signals it by dressing and behaving in a way that signals, “no matter what disheveled personal appearance or casual demeanor I dish out, I am an inalienable member of the oligarchy of the profession.” This sort of guy is above snickering at the well-dressed folks who are trying to hustle, because noblesse oblige, right? He might not even notice them hustle, or he’s a genuinely good guy who has compassion for where they are in the food chain (perhaps remembering his past, hustling self), in which case he’ll offer them a forgiving smile for their faux pas of “trying too hard.” It’s the folks a bit lower on the totem pole who do the snickering. This, by the way, tells you why the snarky takedown could only come from some poser like Epstein: The folks who are the real deal–the folks Epstein respects–are way above dishing out such garbage.

The reason women, people of color, young people, or people from the global south, appear shrill and overly self important when they dress formally or insist on being called by the title they earned, is that they know they have to hustle to be taken seriously, and if they don’t insist on the respect they are owed, they are going to be ignored, patronized, and ridiculed. I think I’ve mostly crossed the age/seniority threshold where being taken seriously is an uphill battle, but it was only last year that I stood behind the podium, prepping my slides for the first session in my own classroom (what could be a more obvious indication that I was the professor?) when an adjunct, who mistook my classroom for his, stepped in, handed me his flash drive, and asked me to pop up his slides and do something about the lighting. This, and far worse, happens every day to academics who are women or other members of disadvantaged groups. And when it happens, they try to calm their breath, swallow hard, feel their heartbeats quicken and their palms sweating, and then, in a voice that sounds ragged and shaky to their own ears and thinly masks the rage, state their honorifics, incurring the scorn of those whose position in life allows them to view this kind of hustle as crass or gauche.

I would happily have us all live in a society of equals, where each of us gets respect for their expertise wearing whatever they want and being called by their first name. Unfortunately, I don’t live in that world and neither do you. So, when you insist on being called Doctor, you are doing it to open the door a bit wider and extend a broader welcome to all your colleagues with doctorates.

SAVE THE DATE: California Correctional Crisis: Mass Incarceration, Healthcare, and the COVID-19 Outbreak

Dear Friends,

Three UC Hastings journals are coming together to organize an important symposium on incarceration and healthcare, focusing on the COVID-19 prison crisis. We are excited to invite you–details will follow. For now, please SAVE THE DATES!


  • Feb. 5, 12-4pm: California Correctional Crisis, Meet COVID-19
  • Feb. 12, 12-4pm: Focus on reproductive justice, trans incarcerated people, and special populations
  • Feb. 19, 12-4pm: Focus on immigration detention and healthcare

Where? Online (registration details to follow)

The conference will feature amazing speakers: advocates, activists, academics, officials, formerly incarcerated people. Among our confirmed speakers are renown prison historian Prof. Ashley Rubin; prison law expert Prof. Sharon Dolovich, Director of the UCLA COVID-19 Behind Bars Data Project; Adnan Khan, Executive Director of Re:Store Justice; Richard Braucher of the First District Appellate Project, counsel for Ivan Von Staich in the landmark case that resulted in a San Quentin population reduction order.

MCLE Credits for lawyers pending. Please plan on joining us!

Your hosts:

Who Threatens Academic Freedom? Adventures in Cancel Culture

Renowned Buddhist scholar and teacher Pema Chödrön tells of her correspondence with Jarvis Jay Masters, a Buddhist scholar on Death Row. In one of his letters, Masters describes watching angry protesters on TV with the sound off and being unable to determine whether they were from the right or from the left. Similarly, in this terrific series of videos by sociologist Ilana Redstone, she recounts experiments in which people were shown a protest on screen and were much more likely to assess the protests as nonviolent when told that the protest aligned with their own political views.

I bring up these examples because of the prolonged, heated argument on social media over the existence and direction of “cancel culture.” Right wingers argue it’s a left-wing problem; left wingers argue that all the canceling is coming from the right.

I’d like to offer a more complicated perspective, rooted in my own experiences. Having been in American academia for twenty years, experienced my fair share of bigotries, threats, and ugliness, and heard plenty of stories from people I know personally, I think that no one has cornered the market on weaponizing social media. Plenty of academics across the political spectrum go to work every day feeling like they’re walking on eggshells. They spend inordinate amounts of mental, emotional, and pedagogical energy tiptoeing around minefields–especially when they are, like most people in academia now, adjuncts or untenured folks. Who they fret about largely depends on which institution they’re in, what the student body is like, what they teach, and what kind of public speaking (if any) they do.

My personal cocktail of bracing and trepidation is a consequence of the fact that I teach and work in a politically complicated space. I talk about issues of high political and emotional valence–criminal justice, civil rights and politics–in a state that has very blue and very red counties. I teach in a very progressive institution, in which our student body is among the most progressive in the country. This has complicated implications for my pedagogy, similar perhaps to the ones that a colleague teaching in a predominantly conservative institution might take: I have to craft what I say to protect the few centrists, moderates, and conservatives in class, who often have good points to make and make them eloquently and politely because being in a largely progressive space has made them stronger, as well as to prod the vast majority of progressives in class out of intellectual laziness and into developing the kind of resilience to upset and disagreement that they will need in their professional lives. But we can talk about all that some other time: Today, hatred is on the menu.

Here is a quick-and-dirty typology of the kinds of blowback, negative feedback, threats, hatred, etc etc., that I have received so far: From the right–nastygrams and screeds via email, often poorly spelled, ranging from garden-variety insults to specific death threats. From the left–anonymous complaints taking my words out of context and ad-hominems that focus on my Israeliness.

Which is more frightening? Hard to say. The right-wing death threats were a constant thing (ironically, often coming from folks who support the death penalty for homicide) and I hadn’t taken them too seriously until the 2016 election, when they became more vicious and started including a time and place for my demise. I especially remember the one that came in shortly after I spoke on KQED about the havoc that Prop. 66 was going to wreak on litigation on behalf of wrongfully convicted people. That one I even reported to the police. In addition to the email vitriol, there are radio callers, and occasionally co-interviewees, on TV and on the radio who can be hostile and difficult; one particular example is the right-wing politico who bloviated about the “liberal professor” and the “liberal media.” People near and dear to me, like my colleague Dorit Reiss who does world-improving work on vaccine advocacy, or my colleague Veena Dubal who advocates for labor rights, experience concerted efforts aimed at them, professionally and personally, by political opponents.

The left wing stuff has been frightening in a different way, because it threatens my job security. One of the biggest frights in this department came in 2011, when I taught torture and spoke of the Israel Supreme Court decision to abolish it. To show that the decision was not followed, I showed the Human rights org B’Tzelem report, which included a diagram of a man being tortured, drawn based on his later testimony. Result: An anonymous complaint to the Dean, strategically sent three weeks before my tenure vote, accusing me of “trivializing Palestinian suffering with a cartoon.” Later, in 2019, an editorial board member of a law review to which I submitted a paper asked me to erase my relevant professional experience (as a public defender in the Israeli army) from my CV so that he could “sell” my paper more effectively to his friends. Stuff like this terrifies me, because I know personally of several people who were more careful and diplomatic than me and had their lives wrecked by a few folks who misunderstood them and took their grievances to twitter (it’s telling that these folks want to keep their fears confidential, but there’s certainly the cases of Greg Patton, Erika Christakis, Laura Kipniss and others, which have been made public.)

I’ve also received cancel efforts from both directions in the form of two 1-star reviews on my books (reviewed with 5 stars by everyone else). In both cases, these were calculated to trash me and hurt sales, but the difference in style was instructive. The right-wing review, sent first to my email inbox, was a lengthy, insult-filled screed misinterpreting my book and calling it “rat droppings.” The left-wing review was headlined, “Israeli militarist on the loose!” and full of ad-hominem insults that had nothing to do with the book (which was not about Israel) or my actual opinions/biography.

As I review my experiences being on the receiving end of ugliness, I notice the following insight: When right-wingers have attacked me, they attacked my opinions (misconstrued and insult-filled.) When left-wingers have attacked me, they attacked my Israeliness. Which was the worse experience? Again, hard to say. Both of these essentially consist of efforts to box me into a hated stereotypical category that’s not quite cut to my size and shape.

Here’s why this matters: the public conversation about who is getting “cancelled” and who is doing the “cancelling” ignores the importance of milieus of reference. Yes, it’s true: nationwide, the threat to science and academic freedom is greater from science-denying administrations, who are cutting funds, reducing opportunities, hindering scientific integrity, and vilifying higher education. But people don’t live and work only in “the nation.” They also live and work in their local communities and academic institutions, where their ability to freely present ideas and pursue research agendas is impacted at least as much by their students’ evaluations, colleagues’ opinions, and administration’s preference, than by the Trumpian kakistocracy. This can explain the wide variation of opinions on what the bigger “cancellation” threat is: people simply do not experience the same threats because they are not exposed to the same milieu. An environmental science professor teaching at a rural college in a red county, with students who are staunch climate deniers ready to complain about religious oppression, faces a very different set of concerns than a law professor teaching race and politics in an urban school in a blue county with students who came from liberal arts colleges ready to perceive slights and take offense at trivial faux pas.

Having the unique experience of absorbing both left and right critiques makes me sympathetic to the concerns of lots of different people; I believe all of these concerns are valid. Who threatens you and who you’re afraid of in academia depends on where you stand. Because of this, I wish we were less resolute and vitriolic in the debate about who “really” instigates cancel culture and who “really” suffers from it.

And why is it that we’re at each other’s throat arguing about who is victimized and who is doing the victimizing? As I explained elsewhere, I suspect a lot of this has to do with the primacy that victimization has taken in American society as a precursor to having a public voice. Years of punitivism (which, in itself, has done very little for victims, as Leigh Goodmark, Aya Gruber, and Justin Marceau have explained in their respective books) have acclimated Americans of all political persuasions to the notion that they will not be listened to unless then can claim victimization. I really wish we could listen to ideas without this extra prism because it primes us to marinate in the uncomfortable, scary place of being a victim for far longer than is good for us.

Unfortunately, unbridled hatred abounds, as well as channels to deploy it. I’ve often thought about the fact that, while stories of academic careers destroyed over misunderstandings and misconstructions have always been around, the role of social media as an amplifier of grievances has greatly increased the risk of wrecking people’s reputations and prospects because of political contention. Working like this is not only upsetting, but unsafe–and when I say “unsafe”, I mean genuinely threatened in terms of one’s livelihood, not “unsafe” as in “upset over something disagreeable that someone said.” I don’t know how to solve this problem, but I do know that both sides of this debate might do well to accept the possibility that their enemies have not cornered the market on stifling academic freedom and scaring others into silence.

In Memoriam: Prof. Ruth Gavison

On my first day of law school, Ruthie Gavison taught us a 1964 case, The AG vs. Bash. In the 1950s and 1960s, it was not uncommon for people to toss old refrigerators in their back yards, and in those days, there was no way to unlatch a refrigerator door from the inside. You can guess how tragedy ensued: children found their way to Bash’s yard, locked themselves in a fridge and died. Bash was convicted of manslaughter and appealed all the way to the Supreme Court. His argument was that many reasonable people did the same thing, so his behavior did not fall beneath the standard expected from the “reasonable man.” The Israel Supreme Court denied him relief: the reasonable man, they said, was not a statistical creature, but a creation of the Court, sometimes behaving better than actual people–in order to use the law (at Bash’s expense) to raise standards of caution and prudence. As Prof. Gavison pithily summarized it, on our very first jurisprudence class, “justice and law are two separate things.”

Ruthie was a formidable person. I admired and feared her throughout law school, even when I worked with her as a teaching and research assistant. When she prepared an assignment for the students, or led us through Socratic inquiries, she was always hundreds of steps ahead, and seemed to have little patience with us for not catching up fast enough. I was under the impression she didn’t know who I was at all, but then she wrote me a gorgeous recommendation letter. It wasn’t effusive, but it showed that she saw me, and I was thrilled; I was young, and being liked was important to me. Which is another reason I admired Prof. Gavison: she did not care at all about what people thought of her. At our Dean’s List reception, she showed up wearing a ratty orange sweater, a white-and-blue striped shirt, sweatpants of an unidentified color, and neon pink sneakers. I will remember that outfit for the rest of my days. It wasn’t gender bending, it wasn’t styled to achieve some sort of androgynous effect–it was just whatever was most convenient to grab from the closet before she left, and it was obvious that, even though it was startling, it was not deliberately curated to startle. I almost fainted from admiration–whaddya mean, a person can live in the world and wear whatever the heck they wanted and not give a fig about how they looked? Prof. Gavison was the first woman I knew whose ego was not embroiled in her looks. She had seemingly gotten all that completely out of the way. The early 1990s were fairly prudish, and I arrived in law school without much awareness that a variety of sexual orientations and presentations was on the menu–these were still considered juicy details that would be whispered behind people’s backs–but Prof. Gavison just lived her life as she pleased. At the time, she had a partner (I think I met her once at their home) and her son, Doron, was 3. I was unclear on the details, but Prof. Gavison just did whatever she thought was best, without apology or embroilment in identity politics or conversations about authenticity. That someone could live like this–do whatever the hell made sense to them without minding anyone else’s opinion–was a revelation to me and had a profound impact on the shaping of my own personal life.

This basic authenticity and utter divestment from bullshit characterized Ruthie’s intellectual legacy, too. When I was still in law school, Prof. Gavison was considered part of the lefty intelligentsia; she founded Israel’s Civil Rights Association (ACRI) and was its chairperson for a long time. Later in life, she took several steps to the right, publicly espousing positions that were far from fashionable in her milieu. But Prof. Gavison was never interested in being fashionable; she didn’t even seem to take pleasure in the identity of a contrarian. The simplistic tropes du jour were like a foreign language to her; she was not on-brand or off-brand–she didn’t have a brand. She just thought deeply about her opinions, formed them, and argued for them, because she believed that was right. There was no lying, obfuscation, linguistic niceties, or any adoption of fashionable terms and tropes to belong or to avoid offending. There was also no deliberate unkindness or petty politicking. If she thought it, she said it. And even if you didn’t agree with it all, it was always memorable.

Perhaps the most important influence that Prof. Gavison’s immense public intellectual career had on my own work was something she said at a criminology conference in Jerusalem in 2000 (I listened to every word because I was doing simultaneous interpretation for two people who would later become my mentors and then my friends, Malcolm Feeley and David Nelken; they were visiting Israel and attended the conference.) We were talking about victimology and victims’ rights, and everyone was bending over backwards to acknowledge suffering and hardship and grief. Prof. Gavison took the podium, and said, “the first and foremost thing that is owed to victims is that they stop being victims as quickly as possible.” This struck me like lightning, because even twenty years ago, before the current obsession with positionality and personal biographies, victimization as an identity mattered a lot, especially in the context of casualties of the Israeli-Palestinian conflict. To stand on a podium and say plainly, without meanness but without polite caveats, either, that clinging to victimization was not the way to go, was revolutionary and brave. She got skewered for comments like this later in life, as heralds of #metoo permeated public discourse and social media became “a thing”, and her comments about self sufficiency and moving on were taken as victim-blaming. But she was never unkind or disdainful. Her recent post against overcriminalization in sex offenses is the epitome of genuine compassion–truly caring about people’s best interests without weaponizing or infantilizing them or turning them into a morality tale. For her, it wasn’t about blame; it was about what made the most sense, and if anyone wanted to take it personally or make political capital off of victims or perpetrators, that was their problem.

I probably would never have written Yesterday’s Monsters if I hadn’t been raised, intellectually, by Prof. Gavison. It is a difficult moral and personal hurdle, to speak or write publicly against the hagiography of victims, especially vocal victims of a heinous, high-profile crime. It takes guts, and I’m not as blasé as Prof. Gavison was about people’s reactions to my work. While I was working on the book, I agonized over whether I was overly harsh on the Tates. It has never been my intent to hurt victims, as it has never been Prof. Gavison’s intent to do so, but causing them anguish was not a consequence I could discount. Moreover, there was the concern that any call for compassion involving the Manson family would fall on deaf ears and draw fire for the worst reasons. Mean comments or one-starred reviews on Amazon from people who sanctify victims as the unquestioned owners of retributive discourse were always a possibility. When I was publicly speaking in support of death penalty abolition, I caught a lot of flak, including death threats, from people on this (the irony of threatening a murder while arguing for capital punishment for murderers was obviously lost.) But Prof. Gavison had taught me to look at the bigger picture. Having one’s life upended by violent crime is not a choice people make, and people will feel about it however they will feel. Their feelings are their feelings. They are valid by virtue of being part and parcel of the human experience, and they are in each of us. But it does not directly follow that public policy should enshrine these feelings as the be-all, end-all of morality, and it does not follow that the best way to honor these emotions and give them room is the criminal process. The acknowledgment that people are who they are, and that one’s policy suggestions need not coddle nor confront their basic way of being, is something I’m still learning. But as I age, I care a lot less what people think, and I see through performative games quickly enough to get to the point.

I got the news of Ruthie’s passing shortly after reading Jason Fagone’s phenomenal article in the Chron yesterday, in which he unflinchingly looks at the numbers and offers a practical roadmap to cutting half of California’s prison population. This is the first time I’ve seen a mainstream newspaper treat this eminently sensible policy suggestion seriously, and rather than present it as some sort of radical idea, wrapped in a lot of “dismantle” and “defund” and “abolish” lingo, chart a roadmap illuminated by decades of robust empirical work. It’s not nuts. It’s the way to guarantee minimal standards of care without putting public safety in peril. One of the commenters (I couldn’t resist) said something like, “next thing they’ll suggest releasing the Manson family.” It’s to Prof. Gavison’s credit that, as her student, I read this, shrugged, and thought, “funny they should mention that.” Ruthie taught me jurisprudence, law and society, and law and politics, but the most important thing she taught me was that grownups should not be afraid of monsters.

Prof. Gavison was, and will always be, a shining beacon of authenticity and truthfulness. It deeply saddens me that we have lost her clear, courageous voice, when such voices are so essential. What is remembered, lives.

The Center Cannot Hold: Zoom as a Potemkin Village

The Juilliard faculty and students made a gorgeous group production of Ravel’s Bolero, which is very worth seeing. In one section, the dancers trace with their fingers the contours of the rectangles that frame their images on the split Zoom screen.

As is the case for so many of us, I am now represented professionally to the world through a rectangle in my home. The people who talk to me every day on Zoom–students, colleagues, TV interviewers–don’t see a Zoom background behind me, frankly because I haven’t had the time and the wherewithal to figure out how to conjure one. Instead, I have found the one semi-rectangular part of a wall in my house that simulates a work-like environment. There are books behind me, they are shelved in a way that makes me look semi-professional, and two makeshift lamps cast light on my face that makes me visible (if not professionally prepped) for TV purposes. Pivot my screen an inch up, down, right, or left, and less professionally presentable parts of my home life come into the frame: the storage area under the stairs, a painting that a man in prison in Brazil once gifted me, the door to the room where I work, from which partner, child, or cats, may emerge at any moment.

There is a partly apocryphal story about Grigory Potemkin, an 18th century Russian nobleman, who in preparation of Queen Catherine’s royal visit in 1783 set out to fabricate idealized villages for her to see from her carriage. Time Magazine recounts the story: “[P]asteboard facades of pretty towns were set up at a distance on riverbanks. At stops, she’d be greeted by regiments of Amazonian snipers or fields set ablaze by burning braziers and exploding rockets spelling her initials; whole populations of serfs were moved around and dressed up in fanciful garb to flaunt a prosperity that didn’t exist (later precipitating famine in the region).”

I am the mother of a toddler who I’ve been caring for in shifts with my partner for the last three months. We have no childcare and no extended family support. We are very fortunate to be both employed in jobs that enable us to work (mostly) from home. And against the backdrop of the miseries suffered by so many worldwide, mine are precious complaints to have. I’m also lucky in that the division of labor at my home is more egalitarian than the unhealthy dynamic that has driven women out of the workforce because their male partners have developed “strategic helplessness”, as Rebecca Solnit calls it, in regard to parenting their own children. We are also extremely privileged in that our son, while very young and in need of constant engagement, does not have special needs. But I’m here to tell you: the Zoom screen through which I speak on TV, record dozens of lectures for my students, and interact with colleagues on litigation and scholarship matters, is a Potemkin village.

What is going on for me and for so many of us is the opposite of the exhortation of math teachers, “show your work.” The picture in the Potemkin village window does not reveal the amount of concentration we have to scrounge to fit ten-hour workdays into our children’s naps. The sheer mental exhaustion from multitasking makes concentrating a real hurdle. Whatever the final product is–in my case, lecturettes, TV interviews, functioning at meetings, public speaking–it is the polished final product of hours of sluggish prep in suboptimal conditions. Even so, there is an enormous amount of thinking that goes into it. A twenty minute lecturette, delivered smoothly and lucidly, in a comprehensible manner, with seamless transitions into and out of a full deck of PowerPoint slides, takes hours of preparation and invariably multiple recording takes. It is much, much harder for me to prepare than a two-hour live class. After all, the latter is what I’ve been doing for a living for twenty years. Being in a rectangle on a screen is not. I know this is true of a lot of us.

Because everyone is bending over backwards to merely function, it is hard to see other people’s efforts and easy to find blemishes. Thankfully, the vast majority of my teaching evaluations this semester were great. But as is always the case, appreciative people seldom take the time to write a magnum opus. The few that weren’t were blistering in their rudeness, the coup-de-grâce being the breathtakingly vicious “it’s not my fault that she has a kid.” It is difficult to imagine a male instructor receiving this comment. As a consequence of the negative bias of the mind, in a sea of seventy praising comments the mind gloms to this one comment, robbing me of the little sleep I can scrounge between bedtime stories, emergency milk bottles, and post-nightmare-comforting. I can’t even blame whoever wrote this. The pandemic has created a sense of compassion deficit. People without little kids–and, more often than not, people with grown kids whose selective amnesia has painted the early years in rosy colors–have no concept of the total concentration and endless giving that goes into keeping a very young child occupied the whole day, and of the toll of the mental transitions between what this absurd society has separated into “adult” and “children” worlds.

The prompt for these reflections was an event that happened yesterday. I was invited to give a TV interview about the protests, policing, deploying the military, the Insurgency Act. Even for five minutes on air, that’s about twenty minutes of preparation in the least. We carefully scheduled our work and childcare shifts that day to enable me to do the interview behind a closed door while my partner cares for our child. Forty minutes before the interview, my partner was called into his office in an emergency and I was left in sole charge of my child who, blissfully, was napping at the time. The interview was scheduled for the hour in which he was to wake up. The office is forty minutes away from our home, discounting traffic. I spent my twenty prep minutes with a pounding heart and sweaty palms, running through scenarios. What if he wakes up while I do this? Do I leave the interview and go to him? Does he leave his bed and enter the room? The mind leapt to disaster scenarios. My child has blond curls and blue eyes. Will it come off as completely tone deaf if I hug him and express comfort on screen on a day in which so many of my friends are out protesting the heartbreaking challenges of raising black children to be potential suspects? potential shooting victims? And what if I get incensed on air and say the wrong thing–because I am exhausted and sleep deprived and did patchy preparation–and whatever I say germinates on the Petri dish of collective rage that we are all experiencing?

Thankfully, my son napped through the interview, which went without a hitch. But that’s not the point, of course. There is nothing here that is special or unique to me. We all have cultivated these Potemkin villages because this is what is expected to us, and we are all good little cogs because we want to pay our rents and mortgages and bills. Nor is any of this unique to the virus era. Like the Zen teachers of yore, the ones in old stories who used to slap monks into awakening, COVID-19 is not a gentle, kind teacher (it would be quite something to see the virus’ teaching evaluations, come to think about it.) It has exposed the ugly truth we knew all along: we live in an economy that values some activities, grossly devalues others (caregiving, caregiving, caregiving), and consistently tells you to hide your work. Our families are a sideshow to be tucked out of sight. Our caring natures are weaknesses, deficiencies, to be criticized for. Our loved ones are inconveniencing the economy. This must be why, in the name of “work-life balance,” we rally for “affordable child care” instead of rallying for meaningful lives. Like the good little cogs we are, we fight for paid childcare for nine to ten hours a day so that we can do our paid, socially valued work, instead of fighting for sensible workdays that give us actual time in the afternoon with our children.

What happens when these lies are exposed–when your Potemkin village is breached–is instructive. A few years ago, Prof. Robert Kelly gave an interview about South Korea to the BBC. He did it from his home, and the footage of the interview reveals the efforts he put in to frame a rectangle of professionalism in his life: a world map behind him, a bookshelf on his left. Halfway through the interview, his two children, Marion and James, came into the room. Kelly’s wife, Kim, pounced on the floor in an effort to corral the children and get them out of the room. Kelly’s interview footage–what he would hope would bring professional acclaim, because speaking on the BBC on international politics is a very big deal–instantaneously became an object lesson on Twitter, a canvas upon which millions of people suddenly projected their worldviews and opinions. Notably, the endless dissection and opining skewed in every which direction: Is it professional? What about the wife? Gender critiques were lobbed. Counterexamples of how he could display warm fatherhood and a positive model of vulnerability abounded. Everyone had Something to Say. In a Potemkin village, any time a bit of your real life drips into the rectangle, you become a morality tale. As Kelly said, “I did not stand up because, as they say, the show must go on. . . Had I stood up and broken out of frame, any semblance of professionalism would have been lost.” Damned if you do and damned if you don’t. I should know: I’ve given TV interviews with my child pulling on my pants where the camera can’t see. I’ve given TV interviews in which news camera crew spent ten minutes scouring my house for a rectangle containing no evidence of children. I’ve given TV legal analysis for hours coming in and out of a green room I converted to a playroom for my son, with TV crew helping out periodically during the five minutes I was onscreen. I’m sure a lot of this is imperfect, displays flawed professionalism, displays flawed mothering. Outraged? Be my guest; take your grievances to Twitter.

It should go without saying, but nothing these days does: I’ve offered you a peek into a very fortunate life, padded with good salaries and social advantage. Around me, people work jobs with hours that are inflexible; write into the night; have gotten fired from their jobs and are already scrambling to send out resumés; raise their children as single parents, with little or no help from the outside; battle the daily grind of supporting children with special needs and challenging medical condition. They love and care for their children. And they step in and out of their respective rectangles, fronting as Ideal Workers. As someone famously wrote two months ago, though everything seems like years ago: parents are not okay. That those of us with mountains of privilege write these pieces tells you volumes about the lives of our friends and neighbors who don’t even have the late night hours to think, let alone write, anything.

To the extent that what I do every day is supporting the illusion of the Potemkin village, I’m gonna give it to you straight. The center cannot hold. Worn hearts are crying, for racism, for tiredness, for inequality, for exhaustion, for financial precariousness. Something’s gotta give.

After this is over, those of us who survive the home-life thing are going to be wrecked, exhausted, burnt out, in a thousand visible and invisible ways. It won’t be an individual problem–it will apply to all of us–and the harms will be too diffused to attend to in any systematic fashion. If you’re looking for a villain to direct your ire, of course, there’s no shortage of that, starting with the villain in the White House who turns everything he touches, including pandemic response and his own citizen’s right to peaceful assembly, to ash, a reverse, perverse King Midas. For some of us, at least, the anger temporarily wins the battle against exhaustion. Someone commented online that, even with a 28:3 advantage, COVID-19 loses to racism. Someone else quipped that COVID-19 is a guest, while racism is playing on its own turf. As we rile against the despotic, violent fantasies of military intervention that Trump is stoking, the breathtaking ineptitude of managing the epidemic retreats to the background–simply because minds and hearts cannot contain all of this and the immediate risks to black people in our streets are not only chronic, but acute. The problem is that this is a marathon, not a sprint, on both counts. The center cannot hold.

A friend posted today the incredible story of Daniel Thorson, who completed a 75-day Buddhist retreat and has just emerged into this poorly written dystopian fantasy you and I have been calling “our timeline.” He is trying to make sense of it all. I wish we could all awaken from this dehumanizing nightmare, in all its facets.


Comic credit Lulu McManus and Ellie Zitsman.