New Podcast/Tallest Dog/Un-Harvard

My new venture. Collective action for colleges and law firms pursued by Trump. And what happened when the world's tallest dog met the world’s shortest dog?

Many of you first got to know me during the 360 episodes I hosted of Unorthodox, “the universe’s leading Jewish podcast,” as I famously dubbed it sometimes in season two. Others got to know me through my more recent podcast Gatecrashers, about the history of Jews, and antisemitism, in the Ivy League. And some of you just know me as a mere scribbler. However you got to know my work, I hope you will subscribe to my new podcast, produced by Arc, the magazine I now edit. The podcast is called—yes—Arc: The Podcast, and it’s a biweekly audio magazine dedicated to capturing the spirit of the magazine, which is about “religion, politics, et cetera.” So too is the podcast about religion, politics, et cetera, with a heavy emphasis on the “et cetera” (not eck-cetera; please now pronounce it five times fast—go to 1:00 of this video for help).

For those of you who have followed me on this audio journey for some time, I promise that I will occasionally touch down on favorite topics: corduroy, Friendly’s restaurants, Springfield, Mass., Beverly Hills 90210, and more. There will be a fair share of Oppenheimer-iana.

But the focus will not be on me, but on the cool stuff in the magazine. Each episode will feature an interview with a contributor to Arc, or a subject of a piece in Arc, or somebody who just seems to be in our spiritual orbit. The first episode features rabbi/scholar/Buddhist/queer-man/mystic Jay Michaelson. It’s a humdinger, as they used to say.

So will you do something for me? Will you subscribe? The more subscribers we launch with, the better we do in the algorithms, the more people find us, and so on and so forth. You can listen on Apple Podcasts and Spotify, and soon on YouTube. Here we are on Podbean, too.

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Solidarity Now!

One of the things I have been wondering a lot about during Trump II is, “Whither collective action?”

When it became clear that Trump was going after various colleges and universities in various ways, my first thought was, “Why don’t all the college presidents get on a big conference call and make a pact not to yield one inch to any of his demands, and to support each other publicly?” Sure, he could then go after all of them, or any of them piecemeal, but the more it looks like an attack on all schools, including top schools in red states, or in districts represented by Republicans, the less he can claim that he is only targeting the eggheads of Harvard and Columbia.

I had a similar thought when law firms across the country began caving to Trump’s demands that they do “pro bono” work for pet causes of Trump’s. The threat he wielded was revoking security clearances of lawyers in the firms, as well as the lawyers’ access to federal buildings, thus making it hard for them to represent many of their clients. Such a threat only really works if the clients have other top firms to bring their business to; if all the top 100 firms (or so) in the country refused to give in to this bullying, then it becomes much harder to penalize any one firm.

So again: instead of caving, why didn’t the managing partner of Paul, Weiss bring together a conference call of all the top firms, and ask them all to hang together (so that they don’t hang separately)?

I ran this question by two friends of mine, one a professor who works on game theory, the other a lawyer at a firm that did not cave to Trump’s demands. They both agreed that in a profit-driven world such as Big Law, it’s very hard to build solidarity across firms—businesses—that compete with each other for big-ticket clients. If twenty firms stood up to Trump and lost their security clearance, the incentive for the 21st firm to cave to Trump, keep its clearance, and go poach clients from the other twenty firms would simply be overwhelming. Put another way: money trumps character.

There was also the interesting question of collusion: if firms got together to swear a pact not to cave to the US government, is that an anti-trust violation? The answer that I, a non-lawyer, got back was: perhaps. There is something called the Noerr-Pennington doctrine, which makes an exception for such a time as this. Per Wikipedia:

Under the Noerr–Pennington doctrine, private entities are immune from liability under the antitrust laws for attempts to influence the passage or enforcement of laws, even if the laws they advocate for would have anticompetitive effects. The doctrine is grounded in the First Amendment protection of political speech, and "upon a recognition that the antitrust laws, 'tailored as they are for the business world, are not at all appropriate for application in the political arena.'"

The doctrine was set forth by the United States Supreme Court in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc. and United Mine Workers v. Pennington. The Court later expanded on the doctrine in California Motor Transport Co. v. Trucking Unlimited.

In Noerr, the Court held that "no violation of the [Sherman] Act can be predicated upon mere attempts to influence the passage or enforcement of laws". Similarly, the Court wrote in Pennington that "[j]oint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition." Finally, in California Motor Transport, the Court added that "the right to petition extends to all departments of the Government [and] [t]he right of access to the courts is indeed but one aspect of the right of petition."

Pursuant to this doctrine, immunity extends to attempts to petition all departments of the government. And "if . . . conduct constitutes valid petitioning, the petitioner is immune from antitrust liability whether or not the injuries are caused by the act of petitioning or are caused by government action which results from the petitioning."

In other words, getting together to fight back against a bully, or to petition said bully—the government—is not the same as getting together to fix prices.

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Can This School Be the New Harvard?

Another thought about collective action: I give a lot of talks to audiences who ask, “Given what I have heard/read/seen about Harvard/Columbia/Oberlin, how can I possibly let my child go there to face the antisemitism/wokeness/
encampments”? Now, without conceding that they are right about college campus culture, I do often wonder why the people who do feel that antipathy toward elite schools have not banded together to nominate some other school as their preferred safe space for their children. In other words, if you have a very bright, ambitious high school senior, but worry about what will befall him or her on those elite campuses, why don’t you go figure out how to find the 1,000 parents like you and, all together, pick some other school to make it your new elite place? Pick one that has good bones, nice buildings, a strong curriculum, but is not, right now, highly selective.

Which school might that be?