52 Alan Dershowitz, Rights from Wrongs 169–70 (2005).
53 Catechism of the Catholic Church, 2265–67 (1997).
54 531 U.S. 98 (2000).
55 Alan M. Dershowitz, Supreme Injustice (2001).
56 Ibid. 191.
57 Ibid. 194.
58 Roe v. Wade, 410 U.S. 113 (1973).
59 ACLU Position Paper, The Right to Choose: A Fundamental Liberty (fall 2000), available at http://www.aclu.org/FilesPDFs/ACF4E49.pdf.
60 Ibid.
61 See, e.g., David Lauter and Douglas Jehl, “Parties Seek Abortion Issue’s Middle Ground,” Los Angeles Times, July 26, 1992, stating that Bush was pro-choice until 1980, when he switched sides and became Reagan’s running mate.
62 Whether the same is true of the debate over capital punishment is a more complex issue, because of the unfairness and inequality in administering the death penalty. See supra, chapter 13.
63 Alan M. Dershowitz, Supreme Injustice 192–95 (2001).
64 Thomas Jefferson, The Virginia Act for Establishing Religious Freedom (1786).
Chapter 22
From Human Rights to Human Wrongs
1 The Universal Declaration of Human Rights (1948).
2 Franklin D. Roosevelt, “State of the Union (Four Freedoms), January 6, 1941,” in FDR: Selected Speeches of President D. Roosevelt 135 (2010).
3 U.N. General Assembly Resolution 181 (II), A/RES/181(II), Nov. 27, 1947.
4 Joseph P. Lash, “Calendar Reform Tops Formosa Issue in Letter to U.N.,” New York Post, April 21, 1955, p. 34, quoting a U.S. note to Secretary General Dag Hammarskjöld.
5 Ibid.
6 I also explored the concept of animal rights. See Alan Dershowitz, Rights from Wrongs 193–99 (2005).
7 Alan M. Dershowitz, Chutzpah 231 (1991).
8 See supra p. 187.
9 Pirkei Avot 1:14.
10 “400 Enroll in a Harvard Course on ‘Law and the Lawyer’ in the Vietnam War,” New York Times, February 18, 1968.
11 “Student Lawyers & Viet Nam,” Time, March 1, 1968.
12 Ellen J. Miller, “Global Watchdog,” Harvard Law School Bulletin, summer 1978, 24–28.
13 Ibid. 24–25.
14 Ibid. 26.
15 Ibid., at 28.
16 Elie Wiesel, The Jews of Silence (1966).
17 Alan M. Dershowitz, “Nobel Laureate Works for Peace,” Boston Herald, December 8, 1992.
18 See The Best Defense, chapter 7 (1983); Chutzpah, chapter 8 (1991); Telford Taylor (with Alan Dershowitz, George Fletcher, Leon Lipson, and Melvin Stein), Courts of Terror (1976).
19 American Booksellers Foundation for Free Expression, Performers, Artists and Authors for Free Expression, Carnegie Hall, New York, May 31, 1991.
20 Tomorrow: The Israel Presidential Conference 2008, ICC International Convention Center, Jerusalem, May 13–15, 2008.
21 Elizabeth S. Landis, “South African Apartheid Legislation I: Fundamental Structure,” 71 Yale Law Journal 1 (1961); Elizabeth S. Landis, “South African Apartheid Legislation II: Extension, Enforcement and Perpetuation,” 71 Yale Law Journal 437 (1962).
22 Alan M. Dershowitz, “Look Who’s Blacklisting Now,” February 22, 1985, reprinted in Alan M. Dershowitz, Taking Liberties 94–96 (1988).
23 Allen’s film The Front (Columbia Pictures, 1976) dealt critically with blacklisting.
24 Alan M. Dershowitz, “Preventive Detention of Citizens During a National Emergency: A Comparison Between Israel and the United States,” 1 Israel Yearbook of Human Rights 295 (1971).
25 For my early criticism of the settlements, see, e.g., “Dershowitz Calls for Mideast Peace: ‘Israel Should Give Up Arab Land,’ ” Harvard Crimson, March 20, 1974.
26 See, e.g., Jennifer Mishory, “Dershowitz Shifts Focus to World Outside Israel,” Daily Bruin, November 8, 2006.
27 An old Soviet dissident joke went this way: The leader of Czechoslovakia asked his Soviet masters for money for a Department of the Navy. The Soviet replied, “But you’re a landlocked country and don’t need a Department of the Navy.” The Czech leader replied: “Well, you have a Department of Justice.”
28 See, e.g., Noam Chomsky, “If Nuremberg Laws Were Applied” (delivered around 1990), available at http://www.chomsky.info/talks/1990-.htm
29 Daniel Berrigan, Address to the Association of Arab-American University Graduates, Washington, D.C., October 19, 1973.
30 See, e.g., Edward S. Herman and Noam Chomsky, After the Cataclysm 138–39 (1979). In his unmatched hatred against America and his penchant to defend the most violent dictators, Chomsky also asserted that “it seems fair to describe the responsibility of the United States and Pol Pot for atrocities during the ‘decade of genocide’ as being roughly in the same range.” Edward S. Herman and Noam Chomsky, Manufacturing Consent 264–65 (1994). Along similar lines, Chomsky praised the Khmer Rouge regime by asserting that “at the end of 1978 Cambodia [under the Khmer Rouge] was the only country in Indochina that had succeeded at all in overcoming the agricultural crisis that was left by the American destruction.” Noam Chomsky, Language and Politics 245–46 (2004). Edward S. Herman and Noam Chomsky, After the Cataclysm 160 (1979).
31 Alan Dershowitz, “Can the Guild Survive Its Hypocrisy?,” American Lawyer, August 11, 1978.
32 As George Conk, an admiring guild historian and a former editor of the monthly Guild Notes, described it: “At the Boulder [Colorado] convention in 1971, the young veterans of the antiwar movement found they had the Guild in their own hands, and many older members withdrew from active membership.”
33 Daniel Berrigan, Address to the Association of Arab-American University Graduates, Washington, D.C. October 19, 1973.
34 Ibid.
35 “Special Report, The Malpractice of the National Lawyers Guild,” 2 Moment 10, 10 (October 1, 1977).
36 Ibid.
37 Alan M. Dershowitz, “Can the Guild Survive Its Hypocrisy?,” American Lawyer, August 11, 1978.
38 Alan M. Dershowitz, “What Are They Watching?,” New York Sun, August 23, 2006. See also Robert L. Bernstein, “Rights Watchdog, Lost in the Mideast,” New York Times, October 20, 2009.
39 See, e.g., Alan M. Dershowitz, “Amnesty International’s Biased Definition of War Crimes: Whatever Israel Does to Defend Its Citizens,” Huffington Post, August 29, 2006; Alan M. Dershowitz, “The ‘Human Rights Watch’ Watch, Installment 1,” Huffington Post, August 21, 2006; Alan M. Dershowitz, The Case Against Israel’s Eemies 33–34 (2008).
40 United Nations Security Council Resolution 242 (S/RES/242).
41 As the historian Benny Morris explained, this formulation was intended “to convert [Israel’s] stunning military victory into a political achievement: the conquered territories could be traded for peace.” Benny Morris, Righteous Victims 328 (2001).
42 Fourth Arab Summit Conference, The Khartoum Resolutions, September 1, 1967.
43 Abba Eban, “Israel’s Dilemmas: An Opportunity Squandered,” in Stephen J. Roth (ed.), The Impact of the Six-Day War: A Twenty-Year Assessment 25 (1988). See also Alan M. Dershowitz, The Case for Israel 205 (2004).
44 Tvuia Saa, “An Ignored Country,” New York Times, December 1, 1977.
45 The record of the UN Commission on Human Rights (UNCHR) on the matter is much the same. In March 1978 the United Kingdom petitioned the UNCHR to appoint a special rappourteur for human rights in Cambodia. Syria, the Soviet Union, and Yugoslavia blocked the move. Instead of appointing a rappourteur, the commission invited comment by the Khmer Rouge, referred the matter to a subcommittee, and (despite the ongoing genocide) delayed consideration of the matter until 1979. By the 1979 meeting of the commission, Vietnam had already invaded Cambodia and effectively ended the killings. Yet again, however, the commission delayed consideration of the Cambodia matter. Only in 1980, nearly five years after the atrocities began, did the UNCHR finally pass a resolution condemning the genocide.
46 A/RES/337 Elements of All Forms of R
acial Discrimination (Nov. 10, 1975).
47 Quoted in Alan M. Dershowitz, Chutzpah 224 (1991).
48 Quoted in Paul Hofmann, “U.N. Votes 72–35, to Term Zionism Form of Racism,” New York Times, November 11, 1975.
49 A/RES/46/86 (Dec. 16, 1991).
50 The conference was authorized by UN Resolution A/RES/52/111 (Feb. 18, 1998).
51 The United States Holocaust Memorial Museum, Voices on Anti-Semitism podcast series, June 5, 2008, transcript available at http://www.ushmm.org/museum/exhibit/focus/antisemitism/voices/transcript/?content=20080605.
52 Even the UN high commissioner for human rights—Mary Robinson, no friend of Israel—was appalled at what she was witnessing. The Arab Lawyers Union distributed a booklet of anti-Semitic cartoons that could have been published by Der Stürmer. The Jerusalem Post reported Robinson’s reaction:
Waving a book of anti-Semitic cartoons distributed at the anti-racism conference in Durban, UN High Commissioner Mary Robinson—in a dramatic act of identification with the Jews vilified in the pamphlet—declared “I am a Jew” at an NGO dinner there Wednesday night. (Herb Keinon and Janine Zacharia, “Robinson in Durban: I Am a Jew,” Jerusalem Post, August 30, 2001.)
53 Tom Lantos, “The Durban Debacle: An Insider’s View of the UN World Conference Against Racism,” 26 Fletcher Forum of World Affairs 1, 7 (winter/spring 2002).
54 AFP News Agency, April 20, 2009.
55 The Perils of Global Intolerance: The United Nations and Durban III, New York, September 22, 2011. A video of my speech is available at http://www.pjtv.com/?cmd=mpg&mpid=457&load=6057.
56 In March 2013, the Muslim Brotherhood issued a statement in which it ordered women “to be confined within a framework that is controlled by the man of the house.” It forbade married women to “file legal complaints against their husbands for rape” and “required the husband’s consent in matters such as travel, work or contraception.” David Kirkpatrick and Mayy El Sheikh, “Muslim Brotherhood Statement on Women Stirs Liberals’ Fear,” New York Times, March 14, 2013. Such sexism is pervasive in numerous Muslim countries, like Saudi Arabia, Egypt, the Gaza Strip, and Iran. Yet at the same time, “the U.N.’s top women’s rights body [condemned] only one state for violating the rights of women anywhere in the world”—Israel. Anne Bayefsky, “ ‘Human Rights’ Are a Weapon in the Political Arsenal of Israel’s Enemies,” Human Rights Voices, March 18, 2013.
57 I’ve elaborated on the “worst first principle” before in the context of the International Criminal Court, which, to its credit, has not failed this test yet. See Alan M. Dershowitz, “For the International Criminal Court to Work, the Worst Must Come First,” Huffington Post, February 10, 2009.
58 Exodus 1:8–10. (“Then a new king, to whom Joseph meant nothing, came to power in Egypt. ‘Look,’ he said to his people, ‘the Israelites have become far too numerous for us. Come, we must deal shrewdly with them or they will become even more numerous and, if war breaks out, will join our enemies, fight against us and leave the country.’ ”) Book of Esther.
59 UN Watch Report: UN, Israel & Anti-Semitism, available at http://www.unwatch.org/site/c.bdKKISNqEmG/b.1359197/k.6748/UN_Israel__AntiSemitism.htm.
Conclusion
1 Yiddish corruption of the Hebrew for “evil eye.”
2 Zelig (Orion Pictures, Warner Bros., 1983).
3 Oliver Wendell Holmes, “The Path of the Law,” 10 Harvard Law Review 457 (1897).
4 Babylonian Talmud: Tractate Baba Bathra, 12b.
5 It is not clear who [actually] coined this bon mot. Besides Berra, the physicist Niels Bohr is often credited with it, as are Samuel Goldwyn and Mark Twain. See David Katzenberg, All Things Considered, National Public Radio, April 7, 2000.
6 As is frequently the case, the discussion in class inspired me to write an article. Alan M. Dershowitz, “Is Paterno Getting a Bum Rap?” Huffington Post, November 18, 2011, http://www.huffing-tonpost.com/alan-dershowitz/is-paterno-getting-a-bum-_b_1101933.html.
7 Evan M. Wiener, Captors (2011).
8 Crazy, Stupid, Love (Warner Bros., 2011).
9 William Shakespeare, The Tempest, Act 2, Scene 1.
10 Though not the Political Science Department, in which I majored. See Alan M. Dershowitz, “Brooklyn College Political Science Department’s Israel Problem,” Huffington Post, January 30, 2013; Alan M. Dershowitz, “Does Brooklyn College Pass the Shoe on the Other Foot Test?” Huffington Post, February 1, 2013; Alan M. Dershowitz, “Did Brooklyn College’s Political Science Department Violate the First Amendment?” Huffington Post, February 12, 2013.
11 René Descartes, Principles of Philosophy, Part 1, Art. 7 (1644).
12 Alan M. Dershowitz, The Best Defense (1983).
13 Alan M. Dershowitz, Chutzpah (1991).
14 Ibid. 353.
15 I wrote about this ugly encounter in Alan M. Dershowitz, “Hatred at Faneuil Hall,” Jerusalem Post, March 21, 2004.
16 Phyllis Chesler and Nancy Kobrin, “Psychological Roots of Islamic Rage,” Jewish Press, August 9, 2006.
17 Alan Dershowitz, The Case for Israel (2003). I eventually wrote The Case for Peace in 2005.
18 Kasim Hafeez, “From Antisemite to Zionist,” Jewish Chronicle, October 7, 2011.
19 Ibid.
20 Jenni Frazer, “Fertile Mind,” interview with Dame Ruth Deech, Jewish Chronicle, April 22, 2005.
21 Jewish Daily Forward 50, 2007, available at http://forward.com/forward-50-2007/.
22 “Activism,” Jewish Daily Forward, November 14, 2003.
23 See Alan M. Dershowitz, “The Brooklyn College BDS Debate and Me: The Critics’ Real Agenda,” Guardian, February 8, 2013.
24 Democracy Now, April 17, 2007.
25 “How Obama Legitimated Torture,” February 19, 2013, blog.
26 See, e.g., Andrew G. Bostom, “The Unbearable Lightness of Alan Dershowitz,” The American Thinker, May 1, 2013; Alan M. Dershowitz, “Jews Who Boo Efforts to Make Peace,” Jerusalem Post, May 5, 2013.
27 Today, the approval rating of the high court is at the lowest in decades. Adam Liptak and Allison Kopicki, “Approval Rating for Supreme Court Hits Just 44% in Poll,” New York Times, June 7, 2012.
28 For the original understanding of the court’s authority, see, e.g., Akhil Reed Amar, America’s Constitution: A Biography 209 (2005).
29 The Federalist Papers 78 (A. Hamilton) 464 (C. Rossiter, ed., 2003).
30 531 U.S. 98 (2000).
31 Citizens United v. Federal Election Commission, 558 U.S. 50 (2010). For an excellent discussion of the behind-the-scenes struggles among the justices leading up to the Citizens United decision, see Jeffrey Toobin, “How John Roberts Orchestrated Citizens United,” New Yorker, May 21, 2012. Three of the four dissenters in Bush v. Gore were appointed by Democratic presidents. The fourth, Justice Stevens, was appointed by a moderate Republican, Gerald Ford, at the recommendation of his Democratic attorney general, Edward Levy.
32 See also Ronald Dworkin, The Supreme Court Phalanx (2008). In his decision upholding the Obama health care law, Chief Justice Roberts sought to balance a desire to preserve the integrity of the high court against his views regarding the commerce and taxing clauses of the Constitution. See Alan M. Dershowitz, “The Health Care Decision Is Good in the Short Term, Questionable in the Long Term,” Newsmax, June, 28, 2012.
33 Brown v. Allen, 344 U.S. 443, 540 (1953).
34 As the New York Times reports, several former partners of the now defunct firm of Dewey & LeBoeuf have asked a judge to reject the bankruptcy plan that the firm had proposed on the grounds that the plan “was designed and conceived to perpetrate a fraud on the firm’s former partners.” The article also cites a former partner who claims that the firm, which at one time employed more than fourteen hundred lawyers in twenty-six offices worldwide, owed him $38 million in compensation. Peter Lattman
, “Several Former Partners Ask Judge to Overturn Dewey’s Bankruptcy Plan,” New York Times, February 16, 2013.
See also Peter Lattman, “With a Judge’s Decision, Dewey Is Officially Dissoved,” New York Times, February 28, 2013
35 As I write these words, the New York Times reports that the American Bar Association’s Task Force on the Future of Legal Education is considering the establishment of the legal equivalent of nurse practitioners. Ethan Bronner, “Lawyers Call for Drastic Changes in Educating New Lawyers,” New York Times, February 10, 2013.
36 As Professor Tamanaha notes in a recent blog spot, “From 1985 through 2009, resident tuition at public law schools increased by a staggering 820 percent—from $2,006 to $18,472 (non-resident tuition increased by 543 percent, from $4,724 to $30,413)—while tuition at private law schools went up by 375 percent—from $7,526 to $35,743. These increases far outstripped the rate of inflation. Had tuition merely kept pace with inflation, average resident tuition at public law schools today would be $3,945, less than a fourth of what it is, and average private school tuition would be $14,800, less than half of what it is. Law school would still be affordable if law schools had not extracted such a large premium over inflation.” Professor Tamanaha goes on to examine the tuition fees at Yale Law School, which are roughly the same as Harvard’s: “Tuition at Yale Law School was $12,450 in 1987; in 1999 it was $26,950; in 2011 it was $50,750—an increase of nearly $24,000 in just the last dozen years. Factoring in projected living expenses ($18,900), Yale students without scholarships (half of the class) who commenced their legal studies in 2010 will pay more than $200,000 to obtain their law degree. If the recent rate of increase continues, ten years hence tuition at Yale Law School will exceed $70,000 annually. That might sound impossible, but ten years ago many would have scoffed at the suggestion that the tuition at Yale would be $50,000 today.” Brian Tamanaha, “The Responsibility of Yale Law School for the Rise of Tuition Nationwide—And What to Do to Help,” Balkanization, November 21, 2011, available at http://balkin.blogspot.com/2011/11/responsibility-of-yale-law-school-for.html.
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