Although AnBryce Professor of Law Emerita Deborah Malamud retired from the tenured faculty in December 2020, her plan was to remain a part of the Law School community and to keep one foot in the classroom. Her first post-retirement project at NYU was the development of a new seminar called “Jewish Questions: Antisemitism, Jewish Identity, and the Law,” which she first taught in the spring of 2023 and is teaching again now.
In her three decades as a law professor at the University of Michigan and then at NYU Law, Malamud taught and wrote in the fields of labor law, employment discrimination, constitutional law, and legislation and the regulatory state, with a particular focus on issues of race and class. For the Jewish Questions seminar, she has drawn on both her legal background in antidiscrimination law and on earlier work in Jewish studies and in the anthropology of modern Israel. A Religion major at Wesleyan University, Malamud studied social and cultural anthropology at the University of Chicago, where she also attended law school. In 1998, she published “The Jew Taboo: Jewish Difference and the Affirmative Action Debate,” in the Ohio State Law Journal.
We spoke to Malamud about her seminar.
How did this course come about?
In the Spring of 2020, I started thinking that it might be time to offer a new seminar. With the help of one of my former teaching assistants, who had a strong background in Jewish cultural studies, I started reading in the field again, and the seminar took shape. The main theme of my “Jew Taboo” article was that there is a deep courage to be found in the field of Jewish studies, a willingness to ask hard questions of continuity and discontinuity, and agency and responsibility, that it is far harder (if not impossible) to ask in the popular sphere. The more I read, the more I wanted to present those issues in the context of a law school seminar. I came up with the title—“Jewish Questions: Antisemitism, Jewish Identity, and the Law”—to indicate the full scope of the inquiry. To study antisemitism without studying affirmative Jewish identities reduces Jewish experience to the experience of group-hatred, which I refuse to do. Indeed, taking on the (secular) study of “Jewish questions” has always been, for me, a deepening of my own Jewish identity.
Can you give some examples of how law intersects with your examination of antisemitism and Jewish identity in this course?
The last three weeks of the course are dedicated entirely to legal issues. For example, this year we will evaluate competing definitions of antisemitism that have been proposed for use in the legal and policy domains; we will study debates on the efficacy of laws against Holocaust denial in Europe; we will look at litigation regarding the boycott and divestment movement (BDS) and at more recent litigation challenging universities’ alleged failures to counter campus antisemitism; we will encounter the US Supreme Court’s new case law on religious accommodation; and we will close with the International Court of Justice’s recent provisional decision in the pending Israel/Gaza genocide case.
But law appears throughout the semester. Early on, for example, we look at Supreme Court cases struggling with how Jews/Judaism/Jewishness “count” for purposes of laws that apply specifically to race, national origin, and/or religion. But we also look at the deep layer of Christian anti-Judaism that associates Jews and Judaism with a spiritually dead, fear-based legalism; and we look at Christian objections to the Talmud. We also come to see that Jewish experience was shaped by the legal structures of the surrounding societies, and how Jews used the law affirmatively and were called upon to defend themselves in religious and secular trials over the centuries.
One could—and I might someday—teach a seminar devoted entirely to what I jokingly call the “law layer” of this seminar. But one thing I have always valued in law teaching, particularly in seminars, is that we are given the freedom to emphasize the interdisciplinary side of our fields. Whether we are dealing with antisemitism, racism, or issues of class—all issues my seminars have focused on—we have the license to say, “The law acts upon this domain; we who use the power of the law ought to understand the domains law acts on.”
You’ve noted that Jews might experience as “antisemitic” not just words or actions threatening their security, but also words or actions threatening their identity. To what extent do you think this is a distinctive experience for a minority group, and what are its implications?
In some future iteration of this seminar, I would love to more deeply explore these comparative questions—which are very present in the seminar, but which I cannot cover systematically. We open the seminar with work on questions of identity, and I draw heavily there on the work of our colleague K. Anthony Appiah, which is comparative in nature. We also explore a cross-cultural category of what are often called “middleman minorities,” groups that have developed, in the course of living within discriminatory economic structures, sets of cultural/intellectual characteristics and sets of inter-communal vulnerabilities that shape both their identity and their security. Issues of identity and security are central to the postcolonial literature, which we touch on—since it has become so centrally deployed in anti-Zionist rhetoric—and about which I am planning to read deeply during the coming year. It turns out that Franz Fanon, one of the originators of the body of postcolonial theory that is today so central to critiques of Israel and Zionism, was deeply influenced in his early years by Jean-Paul Sartre’s Antisemite and Jew. That book explores the way in which the experience of group-hatred shapes the character and identity formation of the hated group. Jews were in that sense a model for the concept of the colonized, long before heated rhetoric moved them into the posture of the colonizer.
You first taught the course in Spring semester 2023. In recent months, antisemitism has been in the headlines on a near daily basis. What are the consequences of that for this class?
I thought long and hard about whether I should fundamentally change the seminar in light of current events, and I decided to stay the course.
This seminar was never going to be emotionally easy—and it wasn’t easy even in Spring 2023. This was a course that was designed to question its central categories. What is Jewish identity? Is treating “antisemitism” as a unitary and eternal phenomenon useful, or do we need to take a more historically particularistic approach? Are Jews to be viewed as eternal victims of “antisemitism,” or do they have agency and (even harder) some measure of responsibility for their concrete relationships with the non-Jewish Other? It is hard to ask students to read a writer like Hannah Arendt, who was harsh in her accounts of what she viewed as a long history of Jewish (and Israeli) political failures, at a time when Israel is under attack in world opinion. And it is much harder to ask students to bring nuance to the question of the relationship between anti-Zionism and antisemitism when there is so little nuance to be found in the public sphere.
I make it extremely clear to prospective students who I am, and am not, and what the seminar is, and is not. Similarly, when I’ve been contacted by activists who are looking for a model course to add to university curricula, I have to explain the reasons why this course may not be what they are looking for.
But I deeply believe that this is precisely the kind of course that is most likely to allow students to fully understand the challenging issues we are facing.
What is the main thing you hope students get out of this course?
I hope that they can use this very academic seminar as an opportunity to grow and to deepen their own thinking on issues that, for so many, are deeply constitutive of their own identities.
Posted March 13, 2024