According to the American Bar Association Model Rules of Profesisonal Conduct, a lawyer is “a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” As Deborah Rhode has astutely pointed out, however, lawyers’ duties as public citizens have long been more of a rhetorical ploy than an actual commitment, in need of elaboration and exposition. In the twenty-first century, lawyers have been forced to come to terms with their asserted role as public citizens in the face of the #MeToo and the Black Lives Matter movements, reform calls for the deregulation of the legal profession designed to increase access to legal services for those who cannot afford to pay for them, and attacks on the rule of law. Professor Robert Katz’ new casebook, Antisemitism and the Law, constitutes an important contribution sure to help those aiming to understand the obligations of lawyers to pursue justice and combat discrimination.
Antisemitism and the Law is organized thoughtfully and effectively. It begins with two introductory sections. Part I lays out a legal foundation, introducing anti-discrimination law and explaining, in particular, how laws designed to combat racial discrimination against non-whites have gradually been construed to apply to groups not defined by race, such as Latinos and Jews. Part II then turns to antisemitism or anti-Judaism by exploring the meaning and definition of Jewish identity, namely who is Jew, from both Jewish and non-Jewish perspectives. It establishes that Judaism is a religion with cultural and ethnoreligious underpinnings, but not a racial category. Read together, Parts I and II compellingly show why legally (as opposed to by other means—more on that below) antisemitism could and should be addressed by vigorously enforcing anti-discrimination laws. With these fundamental building blocks in place, Part III and IV, respectively, study antisemitic speech and antisemitic activities as well as legal responses to them. Part V concludes on a high note of sorts, studying secular and religious allies, their relevance, and importance in the ongoing battle against antisemitism.
Of the book’s many well-written chapters, I found chapter 12 on campus antisemitism particularly intriguing and timely. Following the manuscript’s sensible overall approach of grounding itself in anti-discrimination law before turning to examine instances of antisemitism, the chapter begins by explaining how Title VI of the Civil Rights Act of 1964 has been construed to protect Jewish students from antisemitic harassment on campuses, despite not explicitly mentioning religion-based discrimination. It then presents a case study, examining the anti-Jewish environment and culture at the University of Vermont in the early 2020s. The case study reveals the complexity of defining, debating and combating discrimination. Success depends not only on the availability of applicable laws and courts willing to enforce them, but also on the dedication and persistence of courageous plaintiffs committed to airing the wrongs, and on actions (and inactions) of other actors on campus, including administrators tasked with creating inclusive and welcoming culture for all students and vigorously investigating allegations of hostile environment and abuse, see, for example, here.
Moreover, as Katz, Professor of Law and John S. Grimes Fellow at Indiana University McKinney School of Law and Founder and Director of the Center for the Study of Law and Antisemitism, thoughtfully explains, battling campus discrimination necessitates distinguishing between antisemitism and anti-Zionism and acknowledging the tension between combatting antisemitic harassment on campus and protecting the free speech rights of anti-Zionist activists. Striking this important and delicate balance has gotten even more challenging now that the federal government has become an active actor in the debate through impending settlements with leading universities over their handling of campus protests following the October 7, 2023, Hamas-led attack on Israel and the Israeli government’s response in Gaza.
Chapter 13, in Part V, titled Émile Zola: Antisemitism Is Antithetical to Liberal Democracy, is another must-read. A detailed reexamination of the Dreyfus Affair, in which a high-ranking Jewish officer in the French army was wrongfully convicted of treason based on forged evidence, it demonstrates convincingly that law, legal action, and lawyers alone are unlikely to defeat discrimination. Exactly because antisemitism and other forms of discrimination are fueled by societal ignorance and deep-seeded bias and hatred, a successful campaign to overcome them will be a long-term project which will depend on the formation of a diverse coalition of allies and contributions by brave supporters drawn from a cross-section of society, like Émile Zola, a leading author and public intellectual who famously defended Dreyfus in an op-ed piece titled J’accuse! (I accuse!). Whereas Parts I-IV allow readers to immerse themselves in the multifaceted relationship between the law, equality, and discrimination, Part V, which also includes a fascinating chapter on the relationship between Jews and the Roman Catholic church especially in the twentieth century, serves as an important reminder to lawyers that we cannot and should not attempt to solve difficult societal problem by legal means alone.
Katz explains that Antisemitism and the Law’s goal is to make the subject of antisemitism and the law widely known, accessible within the legal community and beyond it.” He accurately and modestly suggests using selected chapters to “augment courses on race and the law, the First Amendment, cyberlaw, trusts and estates, torts, criminal law, international human rights law, comparative law, education law, law and religion, and Catholic law” (xvii). I suggest adding professional responsibility and legal ethics classes to the mix. Lawyers are public citizens, who have a special responsibility for the quality of justice. Yet, it is hard to understand the meaning of justice in the abstract, let alone articulate specific obligations to it, without appreciating the meaning of injustice and discrimination in context. Antisemitism and the Law is an essential reading in this regard – a manuscript which can help law students (and lawyers) understand a complex problem, its history, causes, possible legal solutions, as well as their limitations.
