In a country where stop-and-frisk is a constitutional practice, the government searching metadata without a warrant, and the TSA that likes to violate Fourth Amendment rights at airports throughout the country, I had to wonder whether the Fourth Amendment was some antiquated law in American jurisprudence. Then the Supreme Court ruled last Wednesday in a 9-0 decision that police officers need a warrant before searching the cell phone of someone who has been stopped or arrested.
The ruling of Riley v. California affirmed that cellphones are worth constitutional protection. As Chief Justice Roberts pointed out in his opinion, cell phones hold "the privacies of life." Especially with the creation of smartphones, everything, whether we are talking about banking and health information, emails, photos, social apps, or website views, are all stored on cellular phones. Also, keep in mind that smartphones provide locational data with the installed GPS, which means that there is an ability to track your every move. Cellphones these days are more like miniature computers with massive storage capacity than they are a mode of communication to convert acoustic vibrations into transmitted sound. The importance of the ruling cannot be emphasized enough.
The Supreme Court could have simply cited Horton v. California and said that since cellphones are "in plain view," it is acceptable to search them without a warrant. Arrest is no longer a pretense to search something as important and informative as the cellphone. What the Supreme Court decided to do instead was apply a technologically literate view to the Digital Age and correctly apply the importance of privacy to cellphones (Kerr, 2013). The home is not the only place where massive amounts of private information can be stored, and I give kudos to the Supreme Court for realizing this important fact. Bravo! As Roberts closed in his opinion, "privacy comes at a price." That's true of any freedom, but I hope that the Supreme Court continues its trend of finding privacy worth protecting.
Monday, June 30, 2014
Friday, June 27, 2014
Is Work-Sharing a Policy Alternative That Can Reduce Poverty and Unemployment?
Although the Great Recession technically ended about five years ago, we are still feeling the effects of the financial crisis that engendered the recession. Increases in employment can barely keep up with population growth, and unemployment is still a major issue. There are those who are well-intended, but suggest poor public policy, such as raising the minimum wage or increasing unemployment benefits. I was reading a paper recently published by the centrist Brookings Institution coming up with various policy alternatives. One such policy they wrote about was the encouragement of work-sharing.
Work-sharing is an agreement in which employees redistribute labor hours amongst themselves in order to help maintain the employment rate (i.e., prevent layoffs), usually because of reduced demand on the employer's part, but sometimes to help employees create a better work-life balance. Work-sharing is slightly different from job sharing. Job sharing has no ties to unemployment insurance whatsoever. Under work-sharing, the individual would be offered prorated unemployment insurance (UI) in addition to maintain their employment on a part-time basis, which is particularly useful when there is temporary, counter-cyclical demand. What this means that instead of laying off twenty workers, one hundred employees would temporarily receive a 20 percent reduction in their wages while receiving a smaller compensation of UI.
One of the distinct advantages of implementing work-sharing is that labor hours can be redistributed in lieu of causing involuntary unemployment. Considering how long-term unemployment makes it more difficult for the unemployed to regain entry into the labor market, this alternative would help reduce the number of long-term unemployed. In addition to avoiding layoffs, it would help businesses retain valued employees while avoiding hiring costs for when the economy does get better. Firing and hiring cost businesses money, and cutting back on those labor costs would also help businesses. Based on these analyses, work-sharing seems to work, as long as output does not deteriorate (Böckerman and Kiander, 2002).
Work-sharing seems to be an improvement over the current UI system. You keep employees working, there is less of a "long-term unemployment epidemic" that causes economic and social costs, and the other benefit here is that employment levels are maintained (as opposed to straight-up UI benefits, which actually decrease employment levels). I wouldn't necessarily be opposed to trying out an expansion of work-sharing, especially if employers collaborate with the government's UI program on a voluntary basis. Conversely, since my reservations still remain, I would also suggest looking for other alternatives in the meantime.
Germany is usually touted as the shining example of how work-sharing programs can succeed (Baker, 2011). Ezra Klein makes a good point, which is that work-sharing works better when there are an inordinate amount of labor laws that make the firing process take months. What the St. Louis Federal Reserve found in 2013 is that it is more difficult to implement in the United States because it is arguably both easier to lay off workers and for workers to find a new job, i.e., the United States has a less rigid labor market that makes it easier to allow for workers to shift from declining sectors to growing ones.
Seventeen states have implemented work-sharing programs already, including California. Although it could be due to mismanagement or not enough PR, I would put my money on the fact that the nature of labor markets is notably different in the United States than it is in Europe. If you can get the conservatives over at the American Enterprise Institute on board (also see Hassett and Strain, 2014), work-sharing is probably an above average policy.
That being said, I do have some reservations, most notably as to whether work-sharing only has negligible effects (Kapteyn et al., 2004; Jacobson and Ohlsson, 2000). Another one is that although the cost of the policy would be roughly that of the current UI system, it would make people even more dependent on the government for their livelihood, which is not something that sits well with me. Work-sharing can be viewed as a way to hide the extent of labor market issues by artificially increasing the employment rate. Work-sharing also assumes that there are a fixed amount of work-hours to be had, and that the status quo is preferable. Markets are dynamic and interconnected, and thus need the ability to adjust when new situations come along, even if that is a recession. We should be encouraging entrepreneurship, not discouraging it. If there were a bright side to recessions, it would be that it weeds out inefficient businesses and allows for remaining businesses to be more efficient in their practices, thereby causing a more efficient allocation of scarce resources. While labor is an important element of running a business, there is also capital, land, and entrepreneurship that are vital inputs, which is why businesses need that flexibility to make the choice about which inputs at what proportion are more important. This is especially true if work-sharing became more of a norm, as well as a labor rigidity that would make it more difficult to fire employees.
Seventeen states have implemented work-sharing programs already, including California. Although it could be due to mismanagement or not enough PR, I would put my money on the fact that the nature of labor markets is notably different in the United States than it is in Europe. If you can get the conservatives over at the American Enterprise Institute on board (also see Hassett and Strain, 2014), work-sharing is probably an above average policy.
That being said, I do have some reservations, most notably as to whether work-sharing only has negligible effects (Kapteyn et al., 2004; Jacobson and Ohlsson, 2000). Another one is that although the cost of the policy would be roughly that of the current UI system, it would make people even more dependent on the government for their livelihood, which is not something that sits well with me. Work-sharing can be viewed as a way to hide the extent of labor market issues by artificially increasing the employment rate. Work-sharing also assumes that there are a fixed amount of work-hours to be had, and that the status quo is preferable. Markets are dynamic and interconnected, and thus need the ability to adjust when new situations come along, even if that is a recession. We should be encouraging entrepreneurship, not discouraging it. If there were a bright side to recessions, it would be that it weeds out inefficient businesses and allows for remaining businesses to be more efficient in their practices, thereby causing a more efficient allocation of scarce resources. While labor is an important element of running a business, there is also capital, land, and entrepreneurship that are vital inputs, which is why businesses need that flexibility to make the choice about which inputs at what proportion are more important. This is especially true if work-sharing became more of a norm, as well as a labor rigidity that would make it more difficult to fire employees.
Work-sharing seems to be an improvement over the current UI system. You keep employees working, there is less of a "long-term unemployment epidemic" that causes economic and social costs, and the other benefit here is that employment levels are maintained (as opposed to straight-up UI benefits, which actually decrease employment levels). I wouldn't necessarily be opposed to trying out an expansion of work-sharing, especially if employers collaborate with the government's UI program on a voluntary basis. Conversely, since my reservations still remain, I would also suggest looking for other alternatives in the meantime.
Wednesday, June 25, 2014
Parsha Chukat: Why Kvetching Is Such a Sin
Kvetch is one of those Yiddish words that managed to make it into everyday English parlance. "To kvetch" means to complain and whine excessively. Its origin comes from the German word quetschen, which literally means "to crush." The German origins help give imagery to the extent of complaining that kvetching conveys, much like we see in this week's Torah portion:
After the kvetching, G-d sent fiery snakes known as seraphim (שרפים) to bite and poison the Israelites, which resulted in many deaths (ibid 21:6). Why the harsh punishment? It's not like this was the first time the Israelites kvetched while wandering the desert. What was so bad about this particular kvetching session where G-d's punishment was poisonous snakes?
Rashi thought that the issue was that the Israelites falsely attributed G-d's power to Moses. I'm not going to necessarily disagree with that, but I'm going to see if I can find something a little more gratifying. Maybe it was a lack of faith, but this wouldn't be the first time that the Israelites expressed their doubts. Let's keep in mind what faith is, which is a strong belief or trust in something or someone, often without any proof. For this generation, they had many forms of proof. They had witnessed the Ten Plagues, the splitting of the Red Sea, and the pillar of fire. They had all the proof they needed.
In my humble opinion, this was not an issue of doubt in G-d, but a particularly bad case of ingratitude. How so? The Israelites had a well of water that constantly followed them in the desert. They also had a daily portion of manna fall from the sky, which is a substance that can be made to taste like whatever one desired. How can they kvetch about something they already had? One is that when you put your desires into the physical realm, you will never be satiated. The Talmud is known for saying "He who has 200, wants 400." We often make the same mistake that the Israelites made, which is that we are often unthankful for what we have. In Hebrew, the term for gratitude is הכרת הטוב, which literally means "recognizing the good." Not only did the Israelites not recognize the good they had, but they went as far as distorting as "rotten bread."
Whether the שרפים were literally serpents or whether this was a literary device to make a point, we can learn three things from this passage. One, the good we have in our lives exists. It's right in front of our faces, much like the manna and water were for the Israelites. Although there are undoubtedly times that are bad, whether you're literally wandering in a desert or are in a dark place in your life, the good is always there, even if it is difficult to see. Second, we must not become indifferent to the good we already have. Part of the challenge of gratitude is that we become so accustomed to the things and people we have in our lives. The Israelites were so used to having the manna and water that they took those essentials for granted. When you realize what you have in life, don't take it for granted because you might not have it one day, or in the case of the Israelites, G-d might send some שרפים your way. Finally, upon realizing what you have, you go in the opposite direction of the Israelites' kvetching by expressing gratitude for what you have. Being able to express gratitude is living up to name Jew (the Hebrew being יהודי), which comes from the root להודות ("to thank"). For some of us, to be thankful in every situation might be too much. We should still work on expressing it as often as we can. If you want a basic, minimalist place to start, start with this Yiddish proverb: "If you can't be thankful for what you have, be thankful for what you have been spared."
למה העליתנו ממצרים, למות במדבר. כי אין לחם ואין מים ונפשנו קצה, בלחם הקלקל
Why have you brought us to die in the wilderness? Because there is no bread, and because there is no water. And our souls are disgusted by this rotten bread. -Numbers 21:5
Rashi thought that the issue was that the Israelites falsely attributed G-d's power to Moses. I'm not going to necessarily disagree with that, but I'm going to see if I can find something a little more gratifying. Maybe it was a lack of faith, but this wouldn't be the first time that the Israelites expressed their doubts. Let's keep in mind what faith is, which is a strong belief or trust in something or someone, often without any proof. For this generation, they had many forms of proof. They had witnessed the Ten Plagues, the splitting of the Red Sea, and the pillar of fire. They had all the proof they needed.
In my humble opinion, this was not an issue of doubt in G-d, but a particularly bad case of ingratitude. How so? The Israelites had a well of water that constantly followed them in the desert. They also had a daily portion of manna fall from the sky, which is a substance that can be made to taste like whatever one desired. How can they kvetch about something they already had? One is that when you put your desires into the physical realm, you will never be satiated. The Talmud is known for saying "He who has 200, wants 400." We often make the same mistake that the Israelites made, which is that we are often unthankful for what we have. In Hebrew, the term for gratitude is הכרת הטוב, which literally means "recognizing the good." Not only did the Israelites not recognize the good they had, but they went as far as distorting as "rotten bread."
Whether the שרפים were literally serpents or whether this was a literary device to make a point, we can learn three things from this passage. One, the good we have in our lives exists. It's right in front of our faces, much like the manna and water were for the Israelites. Although there are undoubtedly times that are bad, whether you're literally wandering in a desert or are in a dark place in your life, the good is always there, even if it is difficult to see. Second, we must not become indifferent to the good we already have. Part of the challenge of gratitude is that we become so accustomed to the things and people we have in our lives. The Israelites were so used to having the manna and water that they took those essentials for granted. When you realize what you have in life, don't take it for granted because you might not have it one day, or in the case of the Israelites, G-d might send some שרפים your way. Finally, upon realizing what you have, you go in the opposite direction of the Israelites' kvetching by expressing gratitude for what you have. Being able to express gratitude is living up to name Jew (the Hebrew being יהודי), which comes from the root להודות ("to thank"). For some of us, to be thankful in every situation might be too much. We should still work on expressing it as often as we can. If you want a basic, minimalist place to start, start with this Yiddish proverb: "If you can't be thankful for what you have, be thankful for what you have been spared."
Monday, June 23, 2014
Why Orthodox Judaism Should at Least Tolerate Homosexuality, But Probably Won't
Same-sex marriage is not only one of the hottest-button topics in America, but it has also gained significant momentum. Although nothing is a guarantee in life, with the current trend line, same-sex in all fifty states is all but inevitable. Even with increasing tolerance and acceptance of homosexuals and same-sex marriage, not to mention that more and more think the argument against same-sex marriage is simply nonsensical, the Orthodox Jewish community is maintaining its ardent stance against homosexuality.
Although I am not Orthodox, I receive emails from the Orthodox organization Aish HaTorah. In it was a link to an audio shiur by Dr. David Luchins about how to "show non-acceptance of behavior yet give respect to the individual." Although the political commentary dates the shiur back a few years, the shiur is still relevant. Luchins' thesis is that you can separate the sin from the sinner because "halacha only judges actions, not intent or sexuality." Luchins was sporadic and off-topic, but I still have to ask whether in the context of dealing with homosexuals in an Orthodox community, can one love the sinner, but still hate the sin?
Before I begin to answer that question, I have to state that although Orthodox Jews across the spectrum of Orthodoxy view homosexual acts as forbidden, there are a relatively wide range of reactions. I'm not a fan of describing a group of people in general, blanket statements. When discussing issues in Orthodoxy, I tend to say that "the further Right you go, the more it's true." In this case, the further to the Right you go, the more animus there is against homosexuality and homosexuals. How far of a spectrum are we dealing with here? It goes as far to the Left as R. Shmuly Yanklowitz's reaction of "civil same-sex marriage is acceptable, but I'm still not sure about religious same-sex marriage" to the far Right's reaction of "homosexuals don't exist, and anyone who does that is proverbially sticking it to G-d (R. Moshe Feinstein, Iggrot Moshe, Orach Chayim, vol. 4 no. 115)." There are views in between, including "you can change your sexuality," "you can overcome this sinful impulse," and "we don't condone homosexual behavior, but we, as a community, are going to treat you like a human being." It is the latter view that Luchins was going for. He wants a framework in which you can have a major qualm with homosexuality, but still treat homosexuals as human beings. Although certain rabbis have signed on to that approach, which is a step in the right direction, "love the sinner but hate the sin" doesn't work, and I'll tell you why on the whole, it isn't being done in practice.
As Luchins himself said, in Judaism, G-d judges actions, and not one's intent. Judaism has such a strong belief in free will that it is decidedly axiomatic. Even so, I will say that free will does have its limits. With regards to homosexuality, even though we haven't determined the exact cause, we do know that one's sexuality is not a choice. Nevertheless, we do have choices about how we act. On the other hand, sexuality is a primal, base force in human nature, and is very much a part of being human.
[As a side note, this is why I find the call for celibacy a largely futile one, which is why I think it's ironic that a group of people so adverse to change, is willing to ask homosexual, Orthodox Jews to stay celibate, something that is essentially as halachially unprecedented as same-sex marriage. Others recommend a homosexual man marrying a woman in the hopes that "he'll find the right woman." Too bad sham marriages don't work. And under an Orthodox paradigm, same-sex couples are forbidden, so it really puts gay Orthodox Jews who want to remain observant/frum in a bind.]
The problem with Luchins' approach is that with the axiomatic concept of free will, one de facto cannot separate the sin from the sinner in Jewish paradigm, which makes sense since "love the sinner, hate the sin" is a Christian concept. In order for sin to exist, it requires an agent (i.e., a human being) to be actualized. Without an agent, sin is a mere abstraction. What's more is that people have a difficult time separating the two precisely because of that reason. As such, the homosexual is perceived as "anti-Torah."
How bad are homosexual acts viewed in a traditionalist mindset? As Luchins brought up, "Any conversation with homosexuality [in Orthodoxy] starts with the words 'it is assur (forbidden by Jewish law),'" and that is how the vast, vast majority of Orthodox Jews feel. I also think this view is misguided because in Jewish hermeneutics, there are multiple ways to interpret a verse, and confining a verse to a single interpretation, especially one that is tenuous, is contrary to the Jewish tradition of interpretation and reeks of intellectual laziness. Even so, "all homosexual acts are forbidden" is the Orthodox norm, and in all probability, that won't change anytime soon.
There are better ways to interpret the prohibition in Leviticus 18:22, but a few factors will solidify the Orthodox opposition to homosexuality or homosexuals. One is the biblical penalty. Although the death penalty was de facto talked out of existence by the rabbis, it is still the one proscribed (Leviticus 20:13), thereby speaking to its gravity. According to some, homosexuality falls under the prohibition in Noahide Law of sexual immorality (גילוי עריות). As an extension, גילוי עריות is so severe that it's better for one to martyr himself than commit the sin. The other three considerations have nothing to do with Jewish law. One is that one tends to fear that which he does not understand. Judaism teaches us to transcend that feeling, but there is enough anecdotal evidence to show the difficulty behind that. Two, Orthodox Judaism has stark gender roles. You think women donning tefillin is bad enough? What about men having sexual relations with another man? From this paradigm [with which I do not agree], a man "acting like a woman in the bedroom" is unacceptable. Three, Orthodoxy has not done the best job of adapting to change since the Enlightenment Period, and it has only been more pronounced in recent years. The fact that the Haredi fertility rate has increased doesn't help either because they make up a larger percent of the Orthodox Jewish community. This is made worse by the fact that they have gained more power in rabbinic and religious institutions, which means that normative Orthodox practice is dismayingly moving further and further to the Right (aka Haredization of Orthodox Judaism).
It does not matter how axiomatic "love thy neighbor as yourself" is to Judaism, that we should treat people with dignity (כבוד הברייות), or that if we were honest enough about ourselves, we realize that we all make mistakes (Ecclesiastes 7:20) and that we are in no position to judge people until we have walked a mile in their shoes. Orthodoxy generally views halacha in such black and white terms, even in spite of rabbis historically having an appreciation for the nuances and complexities that are engrained within reality, that homosexuality, and by extension, homosexuals, will be viewed as anti-Torah, no matter how much Jewish homosexuals are dedicated to the Torah, performing mitzvahs, or contributing to the Jewish community. Until the Orthodox view on homosexual acts changes, the communal [and in most cases, individual] Orthodox response will remain a visceral, antagonistic one that will only push homosexual Jews away from observance.
Although I am not Orthodox, I receive emails from the Orthodox organization Aish HaTorah. In it was a link to an audio shiur by Dr. David Luchins about how to "show non-acceptance of behavior yet give respect to the individual." Although the political commentary dates the shiur back a few years, the shiur is still relevant. Luchins' thesis is that you can separate the sin from the sinner because "halacha only judges actions, not intent or sexuality." Luchins was sporadic and off-topic, but I still have to ask whether in the context of dealing with homosexuals in an Orthodox community, can one love the sinner, but still hate the sin?
Before I begin to answer that question, I have to state that although Orthodox Jews across the spectrum of Orthodoxy view homosexual acts as forbidden, there are a relatively wide range of reactions. I'm not a fan of describing a group of people in general, blanket statements. When discussing issues in Orthodoxy, I tend to say that "the further Right you go, the more it's true." In this case, the further to the Right you go, the more animus there is against homosexuality and homosexuals. How far of a spectrum are we dealing with here? It goes as far to the Left as R. Shmuly Yanklowitz's reaction of "civil same-sex marriage is acceptable, but I'm still not sure about religious same-sex marriage" to the far Right's reaction of "homosexuals don't exist, and anyone who does that is proverbially sticking it to G-d (R. Moshe Feinstein, Iggrot Moshe, Orach Chayim, vol. 4 no. 115)." There are views in between, including "you can change your sexuality," "you can overcome this sinful impulse," and "we don't condone homosexual behavior, but we, as a community, are going to treat you like a human being." It is the latter view that Luchins was going for. He wants a framework in which you can have a major qualm with homosexuality, but still treat homosexuals as human beings. Although certain rabbis have signed on to that approach, which is a step in the right direction, "love the sinner but hate the sin" doesn't work, and I'll tell you why on the whole, it isn't being done in practice.
As Luchins himself said, in Judaism, G-d judges actions, and not one's intent. Judaism has such a strong belief in free will that it is decidedly axiomatic. Even so, I will say that free will does have its limits. With regards to homosexuality, even though we haven't determined the exact cause, we do know that one's sexuality is not a choice. Nevertheless, we do have choices about how we act. On the other hand, sexuality is a primal, base force in human nature, and is very much a part of being human.
[As a side note, this is why I find the call for celibacy a largely futile one, which is why I think it's ironic that a group of people so adverse to change, is willing to ask homosexual, Orthodox Jews to stay celibate, something that is essentially as halachially unprecedented as same-sex marriage. Others recommend a homosexual man marrying a woman in the hopes that "he'll find the right woman." Too bad sham marriages don't work. And under an Orthodox paradigm, same-sex couples are forbidden, so it really puts gay Orthodox Jews who want to remain observant/frum in a bind.]
The problem with Luchins' approach is that with the axiomatic concept of free will, one de facto cannot separate the sin from the sinner in Jewish paradigm, which makes sense since "love the sinner, hate the sin" is a Christian concept. In order for sin to exist, it requires an agent (i.e., a human being) to be actualized. Without an agent, sin is a mere abstraction. What's more is that people have a difficult time separating the two precisely because of that reason. As such, the homosexual is perceived as "anti-Torah."
How bad are homosexual acts viewed in a traditionalist mindset? As Luchins brought up, "Any conversation with homosexuality [in Orthodoxy] starts with the words 'it is assur (forbidden by Jewish law),'" and that is how the vast, vast majority of Orthodox Jews feel. I also think this view is misguided because in Jewish hermeneutics, there are multiple ways to interpret a verse, and confining a verse to a single interpretation, especially one that is tenuous, is contrary to the Jewish tradition of interpretation and reeks of intellectual laziness. Even so, "all homosexual acts are forbidden" is the Orthodox norm, and in all probability, that won't change anytime soon.
There are better ways to interpret the prohibition in Leviticus 18:22, but a few factors will solidify the Orthodox opposition to homosexuality or homosexuals. One is the biblical penalty. Although the death penalty was de facto talked out of existence by the rabbis, it is still the one proscribed (Leviticus 20:13), thereby speaking to its gravity. According to some, homosexuality falls under the prohibition in Noahide Law of sexual immorality (גילוי עריות). As an extension, גילוי עריות is so severe that it's better for one to martyr himself than commit the sin. The other three considerations have nothing to do with Jewish law. One is that one tends to fear that which he does not understand. Judaism teaches us to transcend that feeling, but there is enough anecdotal evidence to show the difficulty behind that. Two, Orthodox Judaism has stark gender roles. You think women donning tefillin is bad enough? What about men having sexual relations with another man? From this paradigm [with which I do not agree], a man "acting like a woman in the bedroom" is unacceptable. Three, Orthodoxy has not done the best job of adapting to change since the Enlightenment Period, and it has only been more pronounced in recent years. The fact that the Haredi fertility rate has increased doesn't help either because they make up a larger percent of the Orthodox Jewish community. This is made worse by the fact that they have gained more power in rabbinic and religious institutions, which means that normative Orthodox practice is dismayingly moving further and further to the Right (aka Haredization of Orthodox Judaism).
It does not matter how axiomatic "love thy neighbor as yourself" is to Judaism, that we should treat people with dignity (כבוד הברייות), or that if we were honest enough about ourselves, we realize that we all make mistakes (Ecclesiastes 7:20) and that we are in no position to judge people until we have walked a mile in their shoes. Orthodoxy generally views halacha in such black and white terms, even in spite of rabbis historically having an appreciation for the nuances and complexities that are engrained within reality, that homosexuality, and by extension, homosexuals, will be viewed as anti-Torah, no matter how much Jewish homosexuals are dedicated to the Torah, performing mitzvahs, or contributing to the Jewish community. Until the Orthodox view on homosexual acts changes, the communal [and in most cases, individual] Orthodox response will remain a visceral, antagonistic one that will only push homosexual Jews away from observance.
Friday, June 20, 2014
Being Offended By Mascots Is More Important than Peoples' Rights, Right?
The Washington Redskins mascot controversy has been around for some time, but it received recent coverage with the federal government revoking the team's trademark protection. According to the U.S. Patent and Trademark Office, another bureaucratic entity which could merit my kvetching, the team mascot is too disparaging to allow under trademark law.
Too disparaging? Really? Last time I checked the Constitution, there was no right to not be offended. Take a look a free speech protections in this country and you'll find many things that are both offensive and protected by secular law. As long as it doesn't violate the nonaggression axiom, businesses should have the economic right to run their business as they see fit, even if it offends certain people.
Although using the term "redskin" isn't being made illegal as of yet, I worry what public policy looks like when the government bans something simply because people are offended. For one, who has standing? When you make laws because they violate an individual's sense of right and wrong, it's a guarantee that someone else's rights are being violated in the process. Even if the government is the appropriate arbitrator (and that's an exceptionally large, questionable "if" that I personally don't think even exists here), it shouldn't stop there. Let's force some other teams to change their mascots, and I'm not even counting other Native American mascots such as the Cleveland Indians, Atlanta Braves, or Chicago Blackhawks. How about the Fighting Irish? I'm pretty sure not all Irish people are leprechauns wearing little hats with a four-leaf clover in it. Let's also go after the Minnesota Vikings, as well. How dare they portray Scandinavians as brutish drunkards with long, blond hair?
It's not like a team can't change its mascot; it has happened before. Much like we have with African-Americans and other disenfranchised minorities, we should have social tact, and we should evolve in a people that does not use tawdry stereotypes to make overgeneralized statements about an entire group of people. However, I don't want the government arbitrarily determining what is offensive and what is not. If offensiveness is a punishable crime, then I don't like the direction in which this country is heading, and that's regardless of whether I agree with the ruling. Even if the ruling is mere symbolism and the government isn't actually going to enforce the law by rummaging around distribution centers that might have Redskins™merchandise, the government has no place telling people whether the term "redskin" is acceptable because it erodes property rights. What is accepted in "polite society" should be determined by society over time based on societal norms, even if that progression evolves slower than some might like. If you don't like the Redskins mascot, it's really simple: don't buy their merchandise, don't go to their football games, and shun anyone who supports the team, but please, don't give the government the precedent to legalize what is offensive and what is not. It won't end well.
Too disparaging? Really? Last time I checked the Constitution, there was no right to not be offended. Take a look a free speech protections in this country and you'll find many things that are both offensive and protected by secular law. As long as it doesn't violate the nonaggression axiom, businesses should have the economic right to run their business as they see fit, even if it offends certain people.
Although using the term "redskin" isn't being made illegal as of yet, I worry what public policy looks like when the government bans something simply because people are offended. For one, who has standing? When you make laws because they violate an individual's sense of right and wrong, it's a guarantee that someone else's rights are being violated in the process. Even if the government is the appropriate arbitrator (and that's an exceptionally large, questionable "if" that I personally don't think even exists here), it shouldn't stop there. Let's force some other teams to change their mascots, and I'm not even counting other Native American mascots such as the Cleveland Indians, Atlanta Braves, or Chicago Blackhawks. How about the Fighting Irish? I'm pretty sure not all Irish people are leprechauns wearing little hats with a four-leaf clover in it. Let's also go after the Minnesota Vikings, as well. How dare they portray Scandinavians as brutish drunkards with long, blond hair?
It's not like a team can't change its mascot; it has happened before. Much like we have with African-Americans and other disenfranchised minorities, we should have social tact, and we should evolve in a people that does not use tawdry stereotypes to make overgeneralized statements about an entire group of people. However, I don't want the government arbitrarily determining what is offensive and what is not. If offensiveness is a punishable crime, then I don't like the direction in which this country is heading, and that's regardless of whether I agree with the ruling. Even if the ruling is mere symbolism and the government isn't actually going to enforce the law by rummaging around distribution centers that might have Redskins™merchandise, the government has no place telling people whether the term "redskin" is acceptable because it erodes property rights. What is accepted in "polite society" should be determined by society over time based on societal norms, even if that progression evolves slower than some might like. If you don't like the Redskins mascot, it's really simple: don't buy their merchandise, don't go to their football games, and shun anyone who supports the team, but please, don't give the government the precedent to legalize what is offensive and what is not. It won't end well.
Wednesday, June 18, 2014
Vergara v. California: K-12 Teacher Tenure Is More than Unconstitutional. It's Downright Ineffective.
Last week, the California Supreme Court ruled in Vergara v. California ruled that teacher tenure in the K-12 school system is unconstitutional. In his ruling, Judge Rolf Treu opined that the statutes of teacher tenure disproportionately affects the poor and disadvantaged. Unsurprisingly, the pending decision is being challenged by the California Teachers Association. What makes the California law interesting is that it grants tenure after less than three years, which, according to the National Council on Teacher Quality, is too soon to determine teacher effectiveness because it takes some time for teachers to get acclimated. I don't think it's a matter of simply asking whether teacher tenure has gone too far, but whether it is necessary and whether it works.
Proponents of teacher tenure will kvetch about a "war on teachers" or how eliminating teacher tenure only weakens labor without increasing the quality of education. Sorry to say this, but teacher tenure does nothing of the kind.
Historically speaking, teacher tenure was implemented to prevent the arbitrary firing of teachers. Even if there were legitimate needs during its inception in the early twentieth century, the problem with invoking is that it is the year 2014, and I couldn't care less. Teacher tenure predates modern-day hiring practices and laws against discrimination. Public policy is about how a policy is implemented, not how it was intended to be. The primary purpose of K-12 teacher tenure is to protect inept teachers from getting fired. You'd be amazed at the loops one has to jump it is to get rid of an incompetent, tenured teacher. If the worry is that a teacher will get fired for expressing an alternative opinion or try out an innovative form of pedagogy, you have to remember that there are all kinds of worker protections that already exist: anti-discrimination laws, collective bargaining, and a myriad of other legal protections. At least in the collegiate world, a teacher has to conduct stellar research and be at least somewhat liked by their students to receive tenure. K-12 teachers receive it simply for teaching for so many years.
And don't give me the business of "having a right to a job." Especially since we are talking about the education of future generations, we should be ever-so scrupulous about maintaining quality assurance. Much like any other profession, if you conduct yourself in an incompetent manner, the employer should have every right to kick you to the curb.
Even if you don't like an unfettered free market, France is a good reminder that an excess of labor regulations create enough rigidities that greatly diminish effectiveness. The more rigid the labor market, the riskier it is to hire an employee. You don't want to discourage hiring, especially when it is a profession that is so essential to the development of human capital. Additionally, tenure does not give school districts fiscal flexibility in the event that budget cuts are required. Take a look at the Chicago Public School system as an example, and you'll see that the biggest obstacle to financial solvency is the teacher pension system, i.e., a labor rigidity.
In his ruling, Treu points out that approximately 1-3 percent of teachers are just lousy, that would mean 2500-8000 teachers in the state of California should be dismissed from their job. If it costs $250-450K to dismiss an incompetent teacher, not only does it cost taxpayer dollars, but it's amazing the difference of economic value for good teachers versus mediocre teachers (Chetty et al., 2013). Even the Center for American Progress, a Left-leaning think-tank, thinks that teacher tenure is an anachronistic policy that has outlived its usefulness and has its economic drawbacks.
Last-in, first-out (LIFO) only encourages retaining teachers solely based on years worked. Teachers should be evaluated and maintain their employment based on their merit, not on the length of their employment, because the value of a good teacher can't be emphasized enough. Value-added modeling would be a good start (Winters, 2012). However, the public education system is dysfunctional enough where policy reform will need to be multi-faceted. Just because we provide access to a market doesn't mean quality is ensured. Incentivizing career advancement, school vouchers, restructuring the reward system, reforming the back-loaded pension system, finding a way to improve upon the ever-important involvement of parents, these all would be ways to improve upon public, K-12 education. By liberalizing the education marketplace, we can help children receive the high-quality education they deserve.
Proponents of teacher tenure will kvetch about a "war on teachers" or how eliminating teacher tenure only weakens labor without increasing the quality of education. Sorry to say this, but teacher tenure does nothing of the kind.
Historically speaking, teacher tenure was implemented to prevent the arbitrary firing of teachers. Even if there were legitimate needs during its inception in the early twentieth century, the problem with invoking is that it is the year 2014, and I couldn't care less. Teacher tenure predates modern-day hiring practices and laws against discrimination. Public policy is about how a policy is implemented, not how it was intended to be. The primary purpose of K-12 teacher tenure is to protect inept teachers from getting fired. You'd be amazed at the loops one has to jump it is to get rid of an incompetent, tenured teacher. If the worry is that a teacher will get fired for expressing an alternative opinion or try out an innovative form of pedagogy, you have to remember that there are all kinds of worker protections that already exist: anti-discrimination laws, collective bargaining, and a myriad of other legal protections. At least in the collegiate world, a teacher has to conduct stellar research and be at least somewhat liked by their students to receive tenure. K-12 teachers receive it simply for teaching for so many years.
And don't give me the business of "having a right to a job." Especially since we are talking about the education of future generations, we should be ever-so scrupulous about maintaining quality assurance. Much like any other profession, if you conduct yourself in an incompetent manner, the employer should have every right to kick you to the curb.
Even if you don't like an unfettered free market, France is a good reminder that an excess of labor regulations create enough rigidities that greatly diminish effectiveness. The more rigid the labor market, the riskier it is to hire an employee. You don't want to discourage hiring, especially when it is a profession that is so essential to the development of human capital. Additionally, tenure does not give school districts fiscal flexibility in the event that budget cuts are required. Take a look at the Chicago Public School system as an example, and you'll see that the biggest obstacle to financial solvency is the teacher pension system, i.e., a labor rigidity.
In his ruling, Treu points out that approximately 1-3 percent of teachers are just lousy, that would mean 2500-8000 teachers in the state of California should be dismissed from their job. If it costs $250-450K to dismiss an incompetent teacher, not only does it cost taxpayer dollars, but it's amazing the difference of economic value for good teachers versus mediocre teachers (Chetty et al., 2013). Even the Center for American Progress, a Left-leaning think-tank, thinks that teacher tenure is an anachronistic policy that has outlived its usefulness and has its economic drawbacks.
Last-in, first-out (LIFO) only encourages retaining teachers solely based on years worked. Teachers should be evaluated and maintain their employment based on their merit, not on the length of their employment, because the value of a good teacher can't be emphasized enough. Value-added modeling would be a good start (Winters, 2012). However, the public education system is dysfunctional enough where policy reform will need to be multi-faceted. Just because we provide access to a market doesn't mean quality is ensured. Incentivizing career advancement, school vouchers, restructuring the reward system, reforming the back-loaded pension system, finding a way to improve upon the ever-important involvement of parents, these all would be ways to improve upon public, K-12 education. By liberalizing the education marketplace, we can help children receive the high-quality education they deserve.
Monday, June 16, 2014
Kol Isha: Let Women Sing Already
Music is considered a universal language. It can invoke many emotions in people. It can inspire, it can move one to tears, and it can bring one to an ecstatic joy. In Jewish law, however, vocal music can have another result, and that is sexual arousal, at least, that is if you are a man listening to a woman sing. This concept is known as kol isha (קול אישה), literally meaning "[a] woman's voice." The premise behind קול אישה is that the woman's voice is an intimate part of herself, and extension, her sexuality. The view that a woman's voice is nakedness (קול אישה ערבה) is classified in the Talmud, which, if you haven't already guessed, is forbidden in traditional circles. What makes this prohibition intriguing is that it is not biblical in nature. In fact, we see enough instances in the Tanach in which women sing in front of men without divine admonition (Exodus 15:20-21, 1 Samuel, 18:6, 2 Samuel 19:36, Ezra 2:65). The blanket prohibition is based on later rulings that are based on a couple of discussions in the Talmud. We first see this view in tractate Berachot 24a where the sages (חז׳׳לֹ) are trying to discern what ערבה (nakedness) is.
In Berachot, R. Yitzchak starts off by saying that ערבה is an exposed handbreadth (טפח), which, as you can imagine, is not particularly that much. I am glad that חז׳׳לֹ rejected R. Yitzchak outright by saying this only refers to when one's wife says Shema (also see Raaviyah, Masechet Berachot, vo. 1, on. 77; Ritva in his Hidushim on Masechet Berachot). Some of the sages try to go further than that limited context. Shmuel says that a woman's singing voice is ערבה, and cites a verse from the Song of Songs (2:14) as a supposed prooftext. If you look at Rashi's commentary, the voice is the Jewish people crying out to G-d. Why? Because in Rashi's interpretation of the entirety of Song of Songs, it is an allegory of the love between G-d (the man) and the people Israel (the woman). Look at the Artscroll edition of Song of Songs, and I will tell you right now there is no recognition that the book can be translated literally, most likely because of the Orthodox taboo about sex in general. But if we're going to interpret the verse literally, even though the tradition has been to interpret it allegorically, we might as well throw in some context because what's the point of interpreting anything if we're going to strip the context from a verse and attempt to make blanket prohibitions? This is a poetic passage (emphasis on "poetic") of two individuals who deeply love one another. This is not an ephemeral fling, but rather a profound connection based on true love. This could explain why חז׳׳לֹ tries to limit the prohibition to something like one's wife (אישתו) saying Shema.
Even when looking at the other mentioning of in Kiddushin 70b, it is Shmuel (again!) who points out that this in the context of a married woman exchanging greetings with another man (commentary of R. Yitzhak Alfasi). Looking at the passage in its context, it is the adulterous intent of the relationship that is the issue, not the voice of the woman itself. Interestingly enough, HaMeiri's commentary (R. Saul Berman, p. 53), as well as Rav Hai Gaon, shows that if a man can "control himself," he is permitted to greet the woman. It could very well explain why a handshake in business transactions, which could be considered a violation of shomer negiah, is actually permissible. Also, since neither Berachot 24a nor Kiddushin 70b explicitly state that "it is forbidden," it is reasonable to assume, much like R. Yitzhak Alfasi did, that these passages were not to make halachic rulings, but were aggadic in nature (also see here).
For me, reality dictates how we view halacha, not vice versa. Taking a look at the first two tractates of the Talmud, this is indeed the case. In tractate Berachot, the blessings we make are based on the reality of the object or event being blessed, not our perceptions thereof. When looking at the nuanced rulings in tractate Shabbat, the permissible or prohibitive nature of a certain act changes when the reality of a given situation is altered ever so slightly. The same goes here when we ask ourselves "is the voice of a woman prima facie a form a sexual arousal?"
If a woman's voice were inherently arousing, women would have to be prohibited from speaking, which is ridiculous. It's probably why later rabbis confine the prohibition to singing only (Rama, commentary on Shulchan Aruch, O.C. 75:3; Beit Shmuel's commentary on S.A., O.C. 21:4). Even if there is something about women singing that is sexually arousing, why do we find exceptions in modern-day halacha? For one, if you're listening to the radio and a female vocalist comes on the air, most rabbis permit one to listen to the vocalist (Maharam Schick, Even Ha-Ezer, no. 53) because there are no visual stimuli (which is problematic for those who argue that the female voice is inherently arousing). There is also the question of whether women can sing זמירות (songs sung at the table during Shabbat and Yom Tov). The answer for this question is based on the Talmud (Megillah 21b), which states that "two voices cannot be heard simultaneously (also see R. Yeheil Weinberg, Seridei Eish, 1:121)." In Divrei Cheifitz, it is also explained that it is permissible in this case because women are not sexually appealing in this context.
The inconsistent application of preventing a woman's voice is all the more reason to question the prohibition. Let's ask a few more questions regarding the nature of the prohibition. Even if you want to argue that men tend to have a stronger sex drive as a basis for prohibiting a woman's voice only, women also have a sex drive and can also be attracted by a man's voice, so why is it that men aren't prohibited from singing? Even if we forget for a moment that not everyone is heterosexual, why can't we recognize that not everyone is sexually aroused by the same thing? Furthermore, why do we prohibit women from singing when there are situations in which women singing are not sexually arousing, but situations in which women talking can be sexually arousing? After all, flirtation is typically spoken, not sung. If we're that worried about women tempting men to commit sexual licentiousness, why not prohibit women from speaking? Much like with speaking, there are contexts in which singing is arousing and situations in which they are not.
The intention behind the prohibition of קול אישה was to prevent singing in a licentious and flirtatious context, which is a far cry from a blanket prohibition on women singing. Furthermore, the slippery slope argument that is used, i.e., singing will automatically lead to licentious sex, is tenuous, especially since a woman's singing voice is more commonly heard than it used to be. The problem with traditional, Jewish sexual mores is that they assume that all women are temptresses and all men have zero impulse control. All this premise does is gives us the false impression that we are merely sexual creatures, and that it is impossible to transcend sexual desires to have meaningful, spiritual relations with other human beings.
I am not stating that we should not have sexual mores or that the sexual mores of Western society are perfect (because they really aren't). What I am saying is that what should be done is apply the mores on a case-by-case basis, as well as a person-by-person basis, because different people will react differently in certain cases. Intent matters greatly. To quote Maimonides (Hilchot Issurei Biah 21:2), "and for one who looks at even the little finger of a woman to take pleasure in it is one who looks at her genitalia, and even to hear a voice of an ערבה or to see her hair is forbidden." Maimonides' prohibition is conditional upon sexual arousal, i.e., the prohibition only applies if it is for the intent of sexual stimulation or arousal (also see R. Saul Berman's teshuvah on the topic).
This leniency is not absolute because if the potential for licentiousness is present, the prohibition still applies. For example, if there is a concert with a blatantly lewd singer, that would be a clear case of "don't go to the concert." Since there is an applicability to both women and men, individuals should view it as a personal chumra based on what they know about their sexuality and sexual attractions (even the Ritv'a [p. 4], a 13th century rabbi, agreed on this matter) since no one knows that facet of their lives better than the given individual. Conversely, if the singing is innocent in nature, then there is no halachic issue because there is no worry of sexual sensuousness (e.g., women singing sacred songs; R. Weinberg, Sereidei Eish II, no. 8; S'dei Chemed, Klalim, Ma'arechet Ha-Kuf no. 42). Not only do I think this more nuanced, case-by-case take on modesty (צניעות) lines up better with the reality of the human condition, but I think it also creates a better sense of spirituality, particularly for women who would like to sing as an expression of spirituality. Rather than stifle women, I hope that those in the Orthodox community realize there is halachic basis to allow for a leniency, thereby giving Jewish women another avenue to better connect to G-d.
In Berachot, R. Yitzchak starts off by saying that ערבה is an exposed handbreadth (טפח), which, as you can imagine, is not particularly that much. I am glad that חז׳׳לֹ rejected R. Yitzchak outright by saying this only refers to when one's wife says Shema (also see Raaviyah, Masechet Berachot, vo. 1, on. 77; Ritva in his Hidushim on Masechet Berachot). Some of the sages try to go further than that limited context. Shmuel says that a woman's singing voice is ערבה, and cites a verse from the Song of Songs (2:14) as a supposed prooftext. If you look at Rashi's commentary, the voice is the Jewish people crying out to G-d. Why? Because in Rashi's interpretation of the entirety of Song of Songs, it is an allegory of the love between G-d (the man) and the people Israel (the woman). Look at the Artscroll edition of Song of Songs, and I will tell you right now there is no recognition that the book can be translated literally, most likely because of the Orthodox taboo about sex in general. But if we're going to interpret the verse literally, even though the tradition has been to interpret it allegorically, we might as well throw in some context because what's the point of interpreting anything if we're going to strip the context from a verse and attempt to make blanket prohibitions? This is a poetic passage (emphasis on "poetic") of two individuals who deeply love one another. This is not an ephemeral fling, but rather a profound connection based on true love. This could explain why חז׳׳לֹ tries to limit the prohibition to something like one's wife (אישתו) saying Shema.
Even when looking at the other mentioning of in Kiddushin 70b, it is Shmuel (again!) who points out that this in the context of a married woman exchanging greetings with another man (commentary of R. Yitzhak Alfasi). Looking at the passage in its context, it is the adulterous intent of the relationship that is the issue, not the voice of the woman itself. Interestingly enough, HaMeiri's commentary (R. Saul Berman, p. 53), as well as Rav Hai Gaon, shows that if a man can "control himself," he is permitted to greet the woman. It could very well explain why a handshake in business transactions, which could be considered a violation of shomer negiah, is actually permissible. Also, since neither Berachot 24a nor Kiddushin 70b explicitly state that "it is forbidden," it is reasonable to assume, much like R. Yitzhak Alfasi did, that these passages were not to make halachic rulings, but were aggadic in nature (also see here).
For me, reality dictates how we view halacha, not vice versa. Taking a look at the first two tractates of the Talmud, this is indeed the case. In tractate Berachot, the blessings we make are based on the reality of the object or event being blessed, not our perceptions thereof. When looking at the nuanced rulings in tractate Shabbat, the permissible or prohibitive nature of a certain act changes when the reality of a given situation is altered ever so slightly. The same goes here when we ask ourselves "is the voice of a woman prima facie a form a sexual arousal?"
If a woman's voice were inherently arousing, women would have to be prohibited from speaking, which is ridiculous. It's probably why later rabbis confine the prohibition to singing only (Rama, commentary on Shulchan Aruch, O.C. 75:3; Beit Shmuel's commentary on S.A., O.C. 21:4). Even if there is something about women singing that is sexually arousing, why do we find exceptions in modern-day halacha? For one, if you're listening to the radio and a female vocalist comes on the air, most rabbis permit one to listen to the vocalist (Maharam Schick, Even Ha-Ezer, no. 53) because there are no visual stimuli (which is problematic for those who argue that the female voice is inherently arousing). There is also the question of whether women can sing זמירות (songs sung at the table during Shabbat and Yom Tov). The answer for this question is based on the Talmud (Megillah 21b), which states that "two voices cannot be heard simultaneously (also see R. Yeheil Weinberg, Seridei Eish, 1:121)." In Divrei Cheifitz, it is also explained that it is permissible in this case because women are not sexually appealing in this context.
The inconsistent application of preventing a woman's voice is all the more reason to question the prohibition. Let's ask a few more questions regarding the nature of the prohibition. Even if you want to argue that men tend to have a stronger sex drive as a basis for prohibiting a woman's voice only, women also have a sex drive and can also be attracted by a man's voice, so why is it that men aren't prohibited from singing? Even if we forget for a moment that not everyone is heterosexual, why can't we recognize that not everyone is sexually aroused by the same thing? Furthermore, why do we prohibit women from singing when there are situations in which women singing are not sexually arousing, but situations in which women talking can be sexually arousing? After all, flirtation is typically spoken, not sung. If we're that worried about women tempting men to commit sexual licentiousness, why not prohibit women from speaking? Much like with speaking, there are contexts in which singing is arousing and situations in which they are not.
The intention behind the prohibition of קול אישה was to prevent singing in a licentious and flirtatious context, which is a far cry from a blanket prohibition on women singing. Furthermore, the slippery slope argument that is used, i.e., singing will automatically lead to licentious sex, is tenuous, especially since a woman's singing voice is more commonly heard than it used to be. The problem with traditional, Jewish sexual mores is that they assume that all women are temptresses and all men have zero impulse control. All this premise does is gives us the false impression that we are merely sexual creatures, and that it is impossible to transcend sexual desires to have meaningful, spiritual relations with other human beings.
I am not stating that we should not have sexual mores or that the sexual mores of Western society are perfect (because they really aren't). What I am saying is that what should be done is apply the mores on a case-by-case basis, as well as a person-by-person basis, because different people will react differently in certain cases. Intent matters greatly. To quote Maimonides (Hilchot Issurei Biah 21:2), "and for one who looks at even the little finger of a woman to take pleasure in it is one who looks at her genitalia, and even to hear a voice of an ערבה or to see her hair is forbidden." Maimonides' prohibition is conditional upon sexual arousal, i.e., the prohibition only applies if it is for the intent of sexual stimulation or arousal (also see R. Saul Berman's teshuvah on the topic).
This leniency is not absolute because if the potential for licentiousness is present, the prohibition still applies. For example, if there is a concert with a blatantly lewd singer, that would be a clear case of "don't go to the concert." Since there is an applicability to both women and men, individuals should view it as a personal chumra based on what they know about their sexuality and sexual attractions (even the Ritv'a [p. 4], a 13th century rabbi, agreed on this matter) since no one knows that facet of their lives better than the given individual. Conversely, if the singing is innocent in nature, then there is no halachic issue because there is no worry of sexual sensuousness (e.g., women singing sacred songs; R. Weinberg, Sereidei Eish II, no. 8; S'dei Chemed, Klalim, Ma'arechet Ha-Kuf no. 42). Not only do I think this more nuanced, case-by-case take on modesty (צניעות) lines up better with the reality of the human condition, but I think it also creates a better sense of spirituality, particularly for women who would like to sing as an expression of spirituality. Rather than stifle women, I hope that those in the Orthodox community realize there is halachic basis to allow for a leniency, thereby giving Jewish women another avenue to better connect to G-d.
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