Unfortunately, yes.

When Israel started genociding Palestinians in Gaza in October and November 2023, it was natural for law scholars to look to the Yale-affiliated institutions of the law and political economy movement—the LPE Blog and the LPE Project—for guidance.

These institutions had grown out of a manifesto published by a group of prominent scholars who self-consciously attempted to rally left voices in legal academia.

As a work of legal theory, the article was painfully superficial, but the scholars who flocked to its banner said that was alright, because the point wasn’t to create a new left-wing theoretical synthesis but rather to create a big tent under which left scholars working in diverse theoretical traditions could join forces.

LPE was going to be a political movement first and an intellectual movement second.

In 2021, this had seemed to pay dividends for left scholars opposed to the existence of the American colony in Palestine known as the State of Israel.

The LPE Blog published a symposium on Palestine, including pieces that described Israel’s apartheid legal structure and the use of terrorism legislation in the United States to squelch Palestinian demands for human rights.

So, in fall 2023, as American-backed forces in Palestine killed thousands and then tens of thousands of Palestinians in Gaza, Antizionist law scholars pored over each weekly installment of new LPE Blog posts looking for condemnation of Israel, affirmation of Palestinian liberation, and a call for armed intervention against Israel to stop the slaughter.

None came.

It was not until the end of November that the blog dared touch the unfolding genocide. And then it was only to do something that might have been expected of the American Constitution Society rather than the self-proclaimed left vanguard of legal academia:

They published a defense of free speech on campus.

Even though genocide scholars had already called Israel’s extermination of Palestinians in Gaza a genocide, LPE managed not to use that word—referring only to an “ongoing and acute crisis in Israel/Palestine”.

It’s important to understand just what was going on here from an intellectual perspective.

Yale-Flavor LPE as a Liberal Outfit in Disguise

For generations, legal academia has been dominated by liberal politics. Liberalism means formal equality. Everyone is to be treated as equal in the eyes of the law.

So, if the constitution protects speech, then all speakers must be protected, whatever they say—whether they are Zionists defending the right of a genocidal colony to exist or decent Americans calling for an end to that colony.

And that’s what the LPE Blog statement called for: the consistent application of formally neutral free speech rules. The statement called it “institutional fairness.”

The legal left is distinguished from the liberal establishment by an interest in substantive rather than formal equality.

The left understands that the equal application of neutral principles almost always leads to substantively unequal results and indeed is often and maybe always a dodge behind which people who wish to perpetuate inequality hide their bigotry.

So, for example, the left understands that non-discriminatory application of formally neutral rules of property law lead to massive wealth inequality.

Accordingly, the left calls for redistribution of wealth that is formally discriminatory in that it would single out the rich for dispossession and give the proceeds to the poor.

The left also understands that the non-discriminatory application of formally neutral rules of international law, such as the rule that internationally-recognized nation-states have a right to defend themselves against armed attack, perpetuates colonization and genocide when the state in question is a Western colony.

Accordingly, the left advances the formally discriminatory position that Western colonies have no right to defense and indeed should be singled out by the international community for destruction by force of arms.

In the free speech context, the left understands that the non-discriminatory application of formally neutral free speech rules leads to the rich and powerful being heard and the voices of the weak being drowned out—because the rich and powerful have access to media platforms that amplify their voices and the weak do not.

Accordingly, the left advances the discriminatory position that the weak should be platformed and the strong should be made to shut up.

The LPE Blog’s decision to defend free speech without using its influential platform to condemn the genocide, to condemn the existence of an American colony in Palestine, to call for Palestinian liberation, and to call for armed intervention against Israel was a moment of truth.

It revealed that despite its radical chic, Yale-flavor law and political economy was not actually a left-wing movement at all. It was a liberal movement.

It is worth considering whether LPE could have thrown a wrench in America’s policy of genocide in the weeks and months immediately following October 7.

What if a group of American law scholars, many at Ivy League institutions, had spoken with one voice to say that Israel was carrying out a genocide and needed to be stopped by any means necessary?

We will never know. Because the left vanguard chose not to take a stand.

What free speech meant in practice was that LPE leadership were eager to outsource the responsibility for taking a position against genocide and colonization to the members of their academic communities who were at once the most vulnerable and the most lacking in a platform: students.

While many students in other parts of the academy did in fact bravely take a stand—often side-by-side with scholars in arts and sciences departments—very few law students joined in. Who can blame them when their supposedly radical faculty role models were ducking and covering?

Yale-Flavor LPE’s Zionism

Despite this clear signal of LPE’s real character as a liberal institution, some law scholars (not all Antizionist) wrote to LPE leaders asking for some coverage of Palestine in the LPE Blog.

These scholars were aware that LPE was likely to take another page from the liberal playbook and eventually acknowledge the genocide—but only once the moment when LPE could have had real impact had long passed. The question was when—and how many Palestinians would need to die first.

These scholars wrote to the LPE Blog board asking why, apart from the lame call for free speech, LPE Blog had published nothing about Israel’s ongoing genocide of Palestinians.

The board responded that no one had submitted any posts about Palestine. That was a strange response given that LPE regularly solicits posts from scholars. LPE had been playing don’t ask, don’t tell during a genocide.

In their communications, the LPE Blog board was careful never to use the word “genocide” to describe Israel’s extermination of Palestinians. It acknowledged “horror” in Gaza, but not genocide.

The concerned law scholars then submitted to LPE Blog a package of six pitches for posts on Palestine.

Four of the proposed pieces criticized Israeli conduct. One made a law and economic argument for ending Israel. Another, by a distinguished scholar, drew on the work of Carl Schmitt to argue that the Israeli state is fundamentally opposed to the rule of law.

Guess which two articles the LPE Blog rejected?

The two pieces that questioned the legitimacy of Israel’s existence rather than merely criticizing her current policies.

What do you call an organization that won’t call into question Israel’s right to exist?

Answer: a Zionist organization. The defining characteristic of Zionism is the belief that Jewish people as a group have a right to self determination in Palestine.

It’s important to understand how far LPE’s reluctance to question Israel’s right to exist takes LPE from a true left position.

The left, as already noted, opposes substantive and not merely formal inequality.

There is no better example of substantive inequality than colonization and genocide.

Economic inequality, apartheid, segregation, and racism are bad. But Zionism (and all colonialism) goes beyond that. Zionism is a policy of ethnically cleansing Palestine of Palestinians by genociding and expelling them.

Israeli apartheid policies are merely a waystation on the route to the complete destruction of Palestinian life in Palestine.

An LPE that can condemn racism at home in America or condemn economic inequality at home in America but which cannot condemn a colonial project carried out by America while that project is conducting a genocide is not a left organization.

The reasons that LPE Blog gave for rejecting the pieces were as revealing as the “institutional fairness” letter that had appeared in December.

LPE suggested that the law and economics post could not be published because LPE does not do law and economics and that the Schmitt post could not be published because LPE does not do political theory.

Anyone who has spent five minutes reading the LPE Blog knows that the blog publishes in both traditions. Ironically, the blog had published two other law and economics pieces by the same scholar (me) before.

LPE was not only taking a Zionist line but seemed unwilling to be honest about it.

Scholars also demanded that the blog publish a mea culpa along with the four posts that the blog had accepted for publication. The mea culpa would acknowledge LPE’s disgraceful failure to take a substantive position on the genocide over what had by that time been seven long months of slaughter.

LPE refused, thereby keeping LPE readers in the dark about the fact that the posts they were reading were the outcome of advocacy work by law scholars concerned that LPE was going to allow an American-backed genocide of Palestinians to pass without substantive comment.

Shortly thereafter, another episode seemed to reinforce the impression that LPE has Zionist commitments.

A group of scholars withdrew an invitation to a conference they had organized about law and political economy in Germany. Their target was one of the scholars who had been pressing for more Palestine content on the LPE Blog (me again).

The reason the conference organizers gave for withdrawing the invitation was a blog statement that the scholar had issued, which expressed opposition to Israel and Zionism.

The headline speaker at the conference was Amy Kapczynski, co-founder and faculty co-director of the LPE Project at Yale.

The direct targeting of an Antizionist law and political economy scholar by the conference organizers—which included Humboldt University’s Law and Society Institute and Free University Berlin’s Empirical Legal Studies Center—posed the question whether the LPE organizational hub at Yale would stand against Zionism in the LPE community or not.

It didn’t.

When asked to withdraw from the conference in protest, Amy did—but only on free speech grounds, saying that she “deeply disagree[s] with many parts of [the] blog statement”.

Equally important, the withdrawal was carried out privately. Neither the LPE Project nor the LPE Blog issued a public statement condemning the actions of fellow LPEers in Germany.

Thus, so far from rejecting Zionism, the Yale-Flavor LPE leadership was not even willing to take a public stand against a violation—by members of the LPE community itself—of the norm of “institutional fairness” that the leadership had trumpeted.

In any event, the blog eventually published a series of brief symposium pieces that obliquely called Israel’s right to exist into question. But LPE leadership has to date continued to maintain silence about the genocide and the need for immediate armed intervention by the international community to end Israel.

The only statement that LPE leadership has published remains the call for free speech that appeared last November.

Antizionist Scholars Should Abandon LPE

What does this mean for left Antizionist legal scholars and students?

The answer is that they should abandon Yale-Flavor LPE institutions and build their own genuinely Antizionist loci of political economic thought.

As the foregoing suggests, LPE is at best deeply uncomfortable with Antizionism and can and does negotiate against Antizionist scholars, managing the terms according to which LPE will platform their work, deciding the timeline according to which Antizionist critique appears, and thereby exerting a moderating influence on what critics say.

As already noted, LPE has always been an intellectual disappointment—lacking, for example, the virtuoso ability to turn law and economics against itself that characterized the critical legal studies movement. LPE’s value proposition was its politics.

LPE’s willingness to serve as a mute bystander to genocide and colonization shows that in the end LPE’s politics does not have much value either.