HLS Symposium: Brandeis on "the Jewish Problem"

Louis D. Brandeis (NYPL)

[We have the following announcement.  DRE] 

“The Jewish Problem, Then and Now: Rethinking Louis Brandeis’s Liberalism”

A Symposium sponsored by the Julis-Rabinowitz Program on Jewish and Israeli Law at the Harvard Law School.  September 16, 4:00 pm - 8:00 pm

2025 marks the 110th anniversary of Louis Brandeis’s famous essay, “The Jewish Problem – How to Solve It.” Taking as his point of departure the persistence of antisemitism in the twentieth-century world, Brandeis laid out a diagnosis of liberalism’s challenges and a positive vision for its future. His essay also marked a major statement on liberal Zionism and the rationale for American Jewish commitment to reconciling Jewish nationalism and American democracy. A century later, we revisit this text and the broader Brandeisian legacy to think about the contemporary questions of liberalism and Zionism, law and economics, and citizenship and group rights in American law. 

Symposium Chairs: Noah Feldman, Felix Frankfurter Professor of Law, Harvard Law School and James Loeffler, Felix Posen Professor of Modern Jewish History, Johns Hopkins University.  With William Forbath (Univ. of Texas, Austin), Amalia Kessler (Stanford), Linda Kinstler (Harvard), Shaul Magid (Harvard), Eric Nelson (Harvard), Simon Rabinovitch (Northeastern), and Laura Weinrib (Harvard)

4pm

Welcome from James Loeffler and Noah Feldman

4:15 – 5:30pm

William Forbath “Brandeis and his Jewish Socialist Critics & Collaborators on Zionism & Industrial Democracy” 

Amalia Kessler “Arbitration and the Jewish Question, 1900-1950” 

Simon Rabinovitch Moderator 

5:30-6:30pm

Shaul Magid “Jewish Nationality, Nationhood, and Diaspora Nationalism: Reading Mordecai Kaplan and Daniel Boyarin through Louis Brandeis”

Laura Weinrib “Free Speech, Group Rights, and Jewish Identity”

Linda Kinstler moderator

6:45-7:45pm

Keynote: “Brandeis’s Jewish Question(s): Global Liberalism Reconsidered”
James Loeffler
Response: Noah Feldman
Moderator: Eric Nelson

Batlan on Antisemitism and the Displaced Persons Act

Felice Batlan, Chicago-Kent College of Law, has posted The 1948 Displaced Persons Act and Home-Grown Antisemitism:

This Article examines the 1948 Displaced Persons Act which provided for the ability of certain European refugees to immigrate to the United States following World War II. The 1948 Act discriminated against Jewish survivors of the Holocaust and imprinted Nazi racial laws and ideology upon U.S. law. Moreover, in debates over passage of such a law, a vast amount of overt antisemitism emerged, generated by politicians and ordinary citizens, which went well beyond the question of the admission of refugees to the United States. By examining the complex and transnational events leading up to the 1948 Displaced Persons Act, and drawing upon underutilized archival material, this Article helps to uncover and explain antisemitism in the immediate post-war period. This analysis has substantial implications for how we think about the history of antisemitism and its relationship to law in the United States.

--Dan Ernst

CFP: "Law v. Antisemitism"

[We have the following Call for Papers.  DRE.]

Indiana University McKinney School of Law and Indiana Journal of Law and Social Equality (IU Maurer School of Law) present “Law vs. Antisemitism” March 13-14, 2022, a hybrid conference to be held on campus and virtually at IU McKinney School of Law, Indianapolis, Indiana.  Deadline: August 1, 2021.

Antisemitism has been called “the oldest hatred.” In the United States, as elsewhere, the law has been used both to perpetrate and to combat antisemitism, historically and today. Different aspects and instrumentalities of law, and specifically U.S. law, have been used to fight antisemitism, including the Constitutional separation of church and state, enshrined in the First Amendment to the United States Constitution; laws against discrimination in employment, housing, and other settings, that explicitly identify religious and ethnic groups as entitled to protection from discrimination; and “hate crimes” laws and sentencing enhancements applied to anti-Jewish violence. Despite these laws, however, there has been a recent resurgence in anti-Jewish violence and antisemitism more generally, ranging from online hate speech to cemetery desecration to the “Tree of Life” synagogue shooting in 2018. Does this mean the law has failed? Do we need new or different laws? Is there reason for doubt or skepticism about the efficacy of law in combating antisemitism?

At the same time, obstacles posed by antisemitism, while serious at times, have not kept Jews from entering American law and legal institutions. Despite a history of antisemitism in the legal profession and legal education, many Jews have found success as lawyers, law professors, and judges. Other Jews, both secular and religious, have looked to Jewish tradition to ground their involvement in 20th and 21st-century civil rights and economic justice movements, including challenging and defying what they believed to be unjust laws. Yet Jews encounter antisemitism on the left as well.

Possible topics for conference presentations and papers may include, but are not limited to:

• Contending definitions of antisemitism itself (International Holocaust Remembrance Alliance (IHRA), Jerusalem Declaration on Antisemitism (JDA))
•  Legal history as it relates to the regulation of Jewish immigrants and Jews in colonial and antebellum America
• Title VII and employment antidiscrimination law as a tool against antisemitism
• Antisemitism in the legal profession
• BDS and Israel boycotts on campus and by state/local governments, international boycott law as applied to Israel
• Jewish involvement/antisemitism in civil rights movements, including BLM
• Holocaust reparations (e.g. legal remedies for looted art)
• 1st Amendment speech issues (hate speech online and elsewhere, Holocaust denialism)
• 1st Amendment religious freedom/free expression as these relate to Jews and Judaism
• Jews and Whiteness, Jewish Anti-Black racism/Black antisemitism
• Antisemitism and White nationalism/White supremacy
• Antisemitism and antisemitic laws in American legal history
• Jewish stereotypes and stereotype-based discrimination
• Intersectional issues (Jews as a religious/ethnic group; LBGTQ Jews; Black Jews, Jewish women)
• The use of zoning and land-use law by and against Jewish communities, the regulation of physical space for Jews in America
• The history of Jewish lawyers and organizations involved in impact litigation in cases involving Jews and others
• Zionism, Anti-Zionism, and antisemitism
• Jewish prisoners’ rights

 We invite scholars to reflect on the relationship between Jews, Judaism, antisemitism, and the law, historically and in the contemporary environment. We especially welcome papers and presentations that propose changes in law and policy with promise for ameliorating antisemitism and its effects.

We anticipate that this Conference will take place in person in a hybrid format, and we are able to offer a limited number of travel grants to support attendance. We believe that giving scholars and attendees an opportunity to meet in person is very valuable, and we hope you will strongly consider it. However, in light of COVID-19 protocols and in the hope of attracting the widest range of presenters from throughout the U.S. and the world, presenting and  attending virtually are also possible..

The Indiana Journal of Law and Social Equality (IJLSE) is the primary conference co-host and publication outlet. Selected papers from the Conference will be eligible for publication in Volume 10 of the IJLSE. This mission of the IJLSE is to serve as an interdisciplinary academic forum for scholars, practitioners, policymakers, and students to contribute to society’s understanding of legal and policy issues concerning social justice and equality.

The Journal of Contemporary Antisemitism (peer-reviewed) has also agreed to publish selected papers from the conference in its Fall 2022 issue. The JCA focuses on antisemitism in the contemporary world (the post-Holocaust era), submissions may include relevant empirical studies dealing with the 19th or early 20th century. Specifically, the JCA focuses on 21st century forms of antisemitism, including but not limited to, antisemitism in the Islamic world, in Europe, on the left and the right of the political spectra, secular antisemitism, antisemitism in the church, and anti-Zionism. The JCA aims to provide a forum in which scholars from diverse political and intellectual backgrounds can analyze, debate, and formulate effective responses to the ever-evolving and insidious threat of antisemitism.

The Notre Dame Journal of Law, Ethics & Public Policy has also graciously agreed to provide special consideration for publication of one selected paper from the Conference. To be considered, the paper must relate to the mission of the JLEPP, “to explore the legal, ethical, and policy considerations of each topic within the framework of the Judeo-Christian intellectual and moral tradition. The JLEPP seeks to publish authors who address that tradition while forming a compelling analysis of issues relevant to the current legal landscape.” For consideration for inclusion in Volume 35, No. 1, full drafts (not Abstracts) must be received by July 15, 2021.

Loeffler on the Paradoxes of Lauterpacht

James Loeffler, University of Virginia, has posted Zionism, International Law, and the Paradoxes of Hersch Zvi Lauterpacht, which is forthcoming in The Law of Strangers: Critical Perspectives on Jewish Lawyering and International Legal Thought (Cambridge University Press):

The history of modern international law is often told as a fable of Jewish moral cosmopolitanism. Many recent accounts of the lawyer, law professor, and judge Hersch Lauterpacht (1897-1960) confirm this narrative by positing that his pioneering ideas of international human rights, crimes against humanity, and the laws of armed conflict derive from his personal experience of antisemitism, the Holocaust, and refugeedom. Implicitly or explicitly, this meta-narrative frequently situates politics in opposition to law, and frames Zionism as the particularistic pole opposite the putative universalism of twentieth-century Jewish legal cosmopolitanism. This chapter challenges this view through a novel reconstruction of Lauterpacht’s biography based on newly discovered archival sources in English, Hebrew, Yiddish, and Polish. Against the trend towards apolitical or antipolitical narratives, this chapter argues that Lauterpacht’s political investment in the Zionist movement shaped his legal imagination of modern international law.

Sullivan & friends on religious freedom

We're getting caught up on the past few years of the University of Chicago Press' Law and Society book series. Edited by Winnifred Fallers Sullivan (Indiana University Bloomington), Elizabeth Shakman Hurd (Northwestern University), Saba Mahmood (University of California, Berkeley), and Peter G. Danchin (University of Maryland), Politics of Religious Freedom came out in 2015. Here is the abstract:

In a remarkably short period of time, the realization of religious freedom has achieved broad consensus as an indispensable condition for peace. Faced with widespread reports of religious persecution, public and private actors around the world have responded with laws and policies designed to promote freedom of religion. But what precisely is being promoted? What are the cultural and epistemological assumptions underlying this response, and what forms of politics are enabled in the process? 

The fruits of the three-year Politics of Religious Freedom research project, the contributions to this volume unsettle the assumption—ubiquitous in policy circles—that religious freedom is a singular achievement, an easily understood state of affairs, and that the problem lies in its incomplete accomplishment. Taking a global perspective, the more than two dozen contributors delineate the different conceptions of religious freedom predominant in the world today, as well as their histories and social and political contexts. Together, the contributions make clear that the reasons for persecution are more varied and complex than is widely acknowledged, and that the indiscriminate promotion of a single legal and cultural tool meant to address conflict across a wide variety of cultures can have the perverse effect of exacerbating the problems that plague the communities cited as falling short.

The second section of the book should be of special interest to LHB readers:

PART 2. History 

Preface Elizabeth Shakman Hurd 

Chapter 8. The Problem with the History of Toleration Evan Haefeli 

Chapter 9. Religious Minorities and Citizenship in the Long Nineteenth Century: Some Contexts of Jewish Emancipation  David Sorkin

Chapter 10. Varieties of Religious Freedom and Governance: A Practical Perspective Robert W. Hefner 

Chapter 11. Religious Freedom between Truth and Tactic Samuel Moyn 

Chapter 12. Religious Freedom, Minority Rights, and Geopolitics Saba Mahmood 

Chapter 13. Ceylon/Sri Lanka: The Politics of Religious Freedom and the End of Empire Benjamin Schonthal 

Chapter 14. Liberty as Recognition Nandini Chatterjee

Further information is available here.

Marglin on Documentary Evidence in Morocco

Jessica Marglin, USC Dornsife, has published the following article: "Written and Oral in Islamic Law: Documentary Evidence and Non-Muslims in Moroccan Shari'a Courts," Comparative Studies in Society and History 59:4 (2017), 884-911. Here's the abstract:

This article begins from the premise that the margins can shine light on the center, and uses the experience of Jews (thought of as marginal in the Islamic world) in Moroccan courts (similarly thought of as marginal in Islamic history) to tell a new story about orality and writing in Islamic law. Using archival evidence from nineteenth-century Morocco, I argue that, contrary to the prevailing historiography, written evidence was central to procedure in Moroccan shari‘a courts. Records of nineteenth-century lawsuits between Jews and Muslims show that not only were notarized documents regularly submitted in court, but they could outweigh oral testimony, traditionally thought of as the gold standard of evidence in Islam. The evidentiary practices of Moroccan shari‘a courts are supported by the jurisprudential literature of the Mālikī school of Sunni Islam, the only one prevalent in Morocco. These findings have particular relevance for the experience of non-Muslims in Islamic legal institutions. Scholars have generally assumed that Jews and Christians faced serious restrictions in their ability to present evidence in shari‘a courts, since they could not testify orally against Muslims. However, in Morocco Jews had equal access to notarized documents, and thus stood on a playing field that, theoretically at least, was level with their Muslim neighbors. More broadly, I explore ways in which old assumptions about the relationship of the written to the oral continue to pervade our understanding of Islamic law, and call for an approach that breaks down the dichotomy between writing and orality.

Further information is available here.