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Friday, March 14, 2008

Alan Dershowitz at his best

Shortly after I graduated from University I somehow wrangled an hour interview with Alan Dershowitz for an article I was writing.  The meeting was arranged to take place at his apartment in Manhattan, and I prepared what I figured to be about an hour and a half worth of questions just in case I was given a little extra time.

In retrospect, I should have been prepared for the incredibly agile mind I was about to encounter and for what short work he would make of my questions, because within 20 minutes he had answered every last one of them in perfectly crafted paragraphs.

When he'd finished answering the last question he seemed to sense that I was out of ammo so he politely offered me a cold drink to help cover the lapse. 

While he puttered around in the kitchen I desperately cast about for something - anything - intelligent to ask the man to fill up a respectable amount of the remaining time alloted to me.  But the more I tried to think the less  coherent my thinking became.  He had  done such a seamless job of dealing with my questions that I could not think of a single follow-up to ask.

When he came back into the room carrying two sweating glasses of water I glanced up at his boyish face and a question suddenly occurred to me:

"You know", I began.  "You were the youngest full professor of Law in the history of Harvard.  You've amassed an incredible record and reputation within the law community... but it occurs to me that you are still a relatively young man."

I was pleased to see in his eyes that he wasn't sure where I was going with this... so I pressed on.

"What I'm trying to say", I continued, "is that when an attorney has achieved what most would consider a respectable lifetime's worth of successes in less than half a lifetime... what does he shoot for next?  Where do you go from here?  Would you want to be a judge?"

He actually blanched when he heard the question and put his glass down on the coffee table before responding

"Let me ask you something", he began... clearly weighing his words.  "Are you a baseball fan?"

When I nodded he continued, "Well then, if you had an hour to kill with Micky Mantle, would you ask him if he wanted to be an umpire?"

I must have looked crestfallen, because he immediately smiled and changed the topic to his recent (at the time) book; 'Chutzpah'.  He talked easily about many of his experiences that had inspired the book... and having noted the kippah on my head, he even touched on his views on Jewish law and justice.

When the hour was up he graciously inscribed a copy of the book we'd been discussing, handed it to me and walked me outside before saying a cordial good-bye.

On the subway ride back to my apartment I couldn't shake the sense that I had just encountered one of the most active and able minds I was ever likely to meet in my life.  Having seen that imposing intellect at work in the living room, I could well imagine how terrifying it would be to face it in the courtroom. 

Over the years I have watched with interest as Mr. Dershowitz has weighed in on Israel.  I haven't agreed with everything he's said or written.  For instance I think he was dead wrong to praise Aaron Barak, former president of the Israeli Supreme Court as a great jurist, and even more off base to compliment Israel's terribly flawed legal system. 

However he has been a staunch defender of Israel's right to self defense and secure borders, and has never hesitated to punch holes in the fallacious arguments with which the international community delights in skewering the Jewish State.  Yet the one thing he doesn't seem to do often enough is, ironically, the kind of thing you would expect from a brilliant attorney; cite the relevant law.

It is one thing to point out the hypocrisy and flaws in someone else's position... but quite another to point out the case law that demonstrates the legality of one's own position. 

So you can imagine I nearly jumped for joy when I read his latest piece in FrontPage Magazine that began with a clear citation of the relevant laws under which Israel has been acting.  I highly recommend that you go and read every last word.  It isn't that he lays out what Israel should do (he doesn't), but rather that he defines the legal status of being under military attack... and then puts the burden of proof squarely on Israel's detractors to prove that Israel's responses have been disproportionate and illegal under those laws.

Reading the article, I was transported back to that long-ago subway ride home from Alan Dershowitz's apartment, and for the second time in my life felt deep relief that such a great mind is on our side and not sitting at the opposing counsel's table.

Posted by David Bogner on March 14, 2008 | Permalink


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I have read "The Case for Israel" about three times and refer to it quite frequently as a reference. The man is, simply put, one of my heroes. I look forward to reading the article; thanks (I know, you're a giver).

Posted by: Erica | Mar 14, 2008 4:18:39 PM

I would have put money on this one. Brilliant Harvard legal mind up against...YU grad? lol!!!! All kidding aside (though we could joke about this match up for days,couldn't we Dave?) his latest blog posting about Israel is brilliant and Olmert and Livni ought to be tied to chairs and forced to have it read to them.

Posted by: Marsha in Stamford | Mar 14, 2008 4:55:09 PM

The problem is that large parts of the world don't care about logic, rules or right. No matter how many times we prove that the sky is blue and water is wet they will still deny these truths.

Still, for those who believe in using logic and rational thought it is nice to have the finer minds on our side.

Posted by: Jack | Mar 14, 2008 6:09:28 PM

While I would not attempt to challenge Mr. Dershowitz on his legal expertise or his rhetorical skills, I will confess that a significant part of "Chutzpah" left me unimpressed, particularly the sections dealing with his own religious feelings and that of his family. I make no claims, therefore, to be free of bias when reading his other writings. That being said:

The problem that I found reading his article is that a reasonably intelligent high-school student could write much of it. This isn't some finely-wrought point of legal finesse that requires a brilliant scholar; it's a simple statement of obvious fact: a nation has the responsibility and the right to defend itself against hostile forces. All the rest of the legalistic material that Dershowitz puts down is, well, irrelevant. Is there any legal scholar out there who really says "Well, Hamas's actions are only 'war crimes,' not 'armed attacks;' therefore, Israel doesn't have claim to the rights of Article 51 in the UN Charter?" I can't claim to have seen every piece of writing on the topic, but I can't imagine that they have.

The one relevant argument that Dershowitz makes, IMHO, is, ironically the one where he doesn't cite any precedents: the definition of "proportionality" (for that matter, he doesn't even cite a requirement of proportionality). It's not a bad argument (and it's one that is routinely ignored by the left-wing), but I am not aware of it being an established international legal concept.

Posted by: efrex | Mar 14, 2008 7:31:37 PM

I thought "Chutzpah" was fantastic; this man truly does not give a rat's tuchus what anyone thinks of him and isn't afraid to speak his mind (and quite intelligently).

I heard him speak to NYU students during the last intifada about how to advocate for Israel. To my surprise, I was disappointed in his effectiveness as an educator on that particular day. His answers and explanations were WAY over the heads of what most Jewish university students could be expected to understand. Regardless, he's brilliant.

Posted by: Benji | Mar 14, 2008 8:30:25 PM

Efrex, I don't think a reasonably intelligent high-schooler could make these arguments--but a reasonably intelligent high-schooler can understand them. This is why Dershowitz impresses me so much. I've read plenty of legal scholarship that seems to work from the premise that, if the unwashed masses understand it, the author has failed. Having made law journal publishing decisions, I viewed it the exact opposite way. Some fields may be more or less esoteric, but language should never be.

Similarly, "finely-wrought point[s] of legal finesse" are vastly overrated, in my opinion. Most often, those finely-wrought points are really, well, intellectual masturbation. Distinctions without differences. Useless discourses into arcane fields. Give me a simple, straightforward evaluation of relevant law and the proper application of it any day. I think you'd be surprised at how many so-called "great legal minds" can't achieve this.

Posted by: Michael | Mar 15, 2008 2:48:02 PM

Alan Dershowitz falls victim to his own brilliance. His "Mickey Mantle as umpire" analogy reveals his fatal flaw: He loves winning, not justice -- he's devoted to iconoclasm, not truth. The Law (a divinely given shield to defend the weak) makes a poor weapon for bashing the strong, because if the Law can be moved according to an attorney's eloquent whim, then eventually it will be wrested from even the most skillful attorney's hand and turned to the will of the strong.

Posted by: Bob | Mar 15, 2008 7:21:25 PM

Michael, I've got to disagree with you.

This isn't 300 AD Rome here. The eloquence of a legal mastermind is not in his diction but in his content and ability to give it over properly. As Benji says, Dershowitz is so successful because not only is he brilliant, he is easy to understand. Just because he explains things with great clarity doesn't mean he is tricking the masses with his fancy talk, and therefore they will never need to "wrest" Law back from him. I could write a book quite lucidly explaining the need for eating cockroaches, but no one is going to listen to that. Dershowitz writes legal books that are factual, convincingly, and fair.

We listen to Dershowitz's eloquence because behind it are words of truth. Dershowitz has become an icon of the pro-Jewish world, but I doubt he would accept iconoclasm over the need to reveal what he sees as the way things are, the truth of the Israel-Arab conflict. He is not an entertainer.

Posted by: Danny Brothers | Mar 15, 2008 10:37:22 PM

I have recommended Dershowitz's "The Case for Israel" more than almost any book written about the Middle East. What's great about the book is that Dershowitz is showing support for Israel from a purely liberal point of view. He basically proves that if you're a liberal, you HAVE to support Israel. Truly a remarkable book, from a remarkable man. You were lucky to have met him.

Posted by: psachya | Mar 16, 2008 9:08:57 AM

Thanks to this blog and the comments here, I'm going out on Monday to pick up his book "The Case for Israel". Thanks peeps! :) BTW, if it is no good I'm coming back here to hunt you down! :D

Posted by: Daniel434 | Mar 16, 2008 9:12:17 AM

Richard Posner, whom I believe you agree with regarding Justice Barak, and who was recently here debating with Barak, also called Barak a great Jurist, but added that he disagreed with him vehemently.

Other than that, this is spot-on about Dershowitz. For his work against Finkelstein alone, he should get the Israel Prize (or some prize anyway).

Posted by: dfb1968 | Mar 16, 2008 9:49:53 AM

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