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Defining Law, Tal Kastner
Defining Law, Tal Kastner
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Commenting on Chaim Saiman’s book, Halakhah: The Rabbinic Idea of Law, this essay views the difficulty of defining halakha as indicative of the universal challenge of defining the bounds of what constitutes “law.” Considering the dynamic of contingent norms, social context, history, and narrative that shapes the meaning of law, it focuses on a series of decisions by a federal district court judge in connection with the case of Bayless v. United States (1996) involving the sufficiency of reasonable suspicion to justify a police stop. Tracing the slippage in this case between holding and dicta, among other sources of authority …
Introduction, Legal Scholarship In Jewish Law, Samuel J. Levine
Introduction, Legal Scholarship In Jewish Law, Samuel J. Levine
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In recent years, Jewish law has gained significant prominence in American legal scholarship, producing a substantial body of literature exploring the Jewish legal system, both on its own terms and in comparative perspective. In particular, the past few decades have seen a marked increase in the number of articles published in American law reviews addressing substantive, procedural, and conceptual aspects of Jewish law, often in the context of broader considerations of important, unsettled, and controversial issues in American legal thought.
In the past, a number of scholars have compiled bibliographies collecting and, at times, briefly annotating, lists of selected works …
Jewish Law From Out Of The Depths: Tragic Choices In The Holocaust, Samuel J. Levine
Jewish Law From Out Of The Depths: Tragic Choices In The Holocaust, Samuel J. Levine
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No abstract provided.
Rethinking Self-Incrimination, Voluntariness, And Coercion, Through A Perspective Of Jewish Law And Legal Theory, Samuel J. Levine
Rethinking Self-Incrimination, Voluntariness, And Coercion, Through A Perspective Of Jewish Law And Legal Theory, Samuel J. Levine
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No abstract provided.
Miranda, Dickerson, And Jewish Legal Theory: The Constitutional Rule In A Comparative Analytical Framework, Samuel J. Levine
Miranda, Dickerson, And Jewish Legal Theory: The Constitutional Rule In A Comparative Analytical Framework, Samuel J. Levine
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In this Essay, Professor Levine briefly explores Dickerson v. United States, the important 2000 decision in which a divided United States Supreme Court held that the standard established in Miranda v. Arizona continues to govern the admissibility of confessions, notwithstanding a federal statute enacted subsequent to Miranda that provided an alternative standard. Levine addresses broader theoretical implications of the approaches adopted by the majority and dissenting opinions in Dickerson. Drawing a parallel to the interpretation of the Torah in Jewish legal theory, he proposes a comparative framework for analyzing the division between the majority and dissent over the concept and …
Applying Jewish Legal Theory In The Context Of American Law And Legal Scholarship: A Methodological Analysis, Samuel J. Levine
Applying Jewish Legal Theory In The Context Of American Law And Legal Scholarship: A Methodological Analysis, Samuel J. Levine
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No abstract provided.
Of Inkblots And Omnisignificance: Conceptualizing Secondary And Symbolic Functions Of The Ninth Amendment, In A Comparative Hermeneutic Framework, Samuel J. Levine
Of Inkblots And Omnisignificance: Conceptualizing Secondary And Symbolic Functions Of The Ninth Amendment, In A Comparative Hermeneutic Framework, Samuel J. Levine
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In this Essay, Levine focuses on a particular hermeneutic approach common to the interpretation of the Torah and the United States Constitution: a presumption against superfluity. This presumption accords to the text a considerable degree of omnisignificance, requiring that interpreters pay careful attention to every textual phrase and nuance in an effort to find its legal meaning and implications. In light of this presumption, it might be expected that normative interpretation of both the Torah and the Constitution would preclude a methodology that allows sections of the text to remain bereft of concrete legal application. In fact, however, both the …
Emerging Applications Of Jewish Law In American Legal Scholarship: An Introduction, Samuel J. Levine
Emerging Applications Of Jewish Law In American Legal Scholarship: An Introduction, Samuel J. Levine
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In recent years, the field of Jewish law has gained increasing prominence in American law schools and legal scholarship. At the same time, in the realm of scholarship, a substantial body of literature has developed considering the relevance of Jewish legal thought to a variety of issues in the American legal system. As the substance, scope, and volume of this scholarship demonstrate, an analysis of Jewish law may prove helpful in providing comparisons and contrasts to both controversial and seemingly settled areas of American law. At the 2007 Annual Meeting of the Association of American Law Schools, the Section on …
Reflections On Responsibilities In The Public Square, Through A Perspective Of Jewish Tradition: A Brief Biblical Survey, Samuel J. Levine
Reflections On Responsibilities In The Public Square, Through A Perspective Of Jewish Tradition: A Brief Biblical Survey, Samuel J. Levine
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In recent years, there has developed in the United States a substantial and growing interest in the role of religion in the public square. Within religious communities, the conversation has, at times, focused on the approach of specific religious traditions toward their own responsibilities to contribute to and influence the moral, ethical, and legal standards of American society. For Jewish communities living in the United States, these questions comprise yet another application of issues the Jewish people has confronted throughout its history. To the extent that the nature of American political and social structures differ significantly from those experienced by …
Looking Beyond The Mercy/Justice Dichotomy: Reflections On The Complementary Roles Of Mercy And Justice In Jewish Law And Tradition, Samuel J. Levine
Looking Beyond The Mercy/Justice Dichotomy: Reflections On The Complementary Roles Of Mercy And Justice In Jewish Law And Tradition, Samuel J. Levine
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In one of his earliest encyclicals, Dives in Misericordia, Pope John Paul II explored the concepts of mercy and kindness, with a focus on notions of divine love and compassion. Building upon these observations, and drawing extensively on the work of Rabbi Joseph Soloveitchik and other scholars of Jewish law and philosophy, Levine considers the complementary roles of justice and mercy in Jewish tradition. Toward that end, Levine places these concepts in a broader perspective, viewing mercy as representative of attributes such as kindness, compassion, love, and peacefulness, while understanding justice in terms of more exacting principles, such as strict …
Richard Posner Meets Reb Chaim Of Brisk: A Comparative Study In The Founding Of Intellectual Legal Movements, Samuel J. Levine
Richard Posner Meets Reb Chaim Of Brisk: A Comparative Study In The Founding Of Intellectual Legal Movements, Samuel J. Levine
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Of the various movements that have surfaced in American legal theory in recent decades, law and economics has emerged as perhaps the most influential, leading some to characterize it as the dominant contemporary mode of analysis among American legal scholars. In this essay, Levine considers law and economics in the context of a comparative discussion of another prominent intellectual legal movement, the Brisker method of Talmudic analysis, which originated in Eastern Europe in the late nineteenth century and quickly developed into a leading method of theoretical study of Jewish law. The Brisker method takes its name from the city of …
An Introduction To Self-Incrimination In Jewish Law, With Application To The American Legal System: A Psychological And Philosophical Analysis, Samuel J. Levine
An Introduction To Self-Incrimination In Jewish Law, With Application To The American Legal System: A Psychological And Philosophical Analysis, Samuel J. Levine
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In recent years, American courts and legal scholars have increasingly turned to Jewish legal tradition for insights into various issues confronting the American legal system. Jewish law has provided an alternative model and, at times, a contrast case that some have found particularly helpful in illuminating complex, controversial, and unsettled areas of American law. In light of these developments, this Essay aims to consider the efficacy of drawing on Jewish law to facilitate a more thoughtful analysis of issues in American law, with a specific focus on the issue of self-incrimination. The Essay begins with a brief discussion of the …
A Comparative Analysis Of The Jewish Law And The Secular Perspective On International Human Rights (Part Of The Article, “Human Rights In The Bible, An Exchange Of Ideas”)., Richard Klein, Chaim Povarsky
A Comparative Analysis Of The Jewish Law And The Secular Perspective On International Human Rights (Part Of The Article, “Human Rights In The Bible, An Exchange Of Ideas”)., Richard Klein, Chaim Povarsky
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No abstract provided.
Reflections On The Practice Of Law As A Religious Calling, From A Perspective Of Jewish Law And Ethics, Samuel J. Levine
Reflections On The Practice Of Law As A Religious Calling, From A Perspective Of Jewish Law And Ethics, Samuel J. Levine
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This Essay is based on introductory remarks Levine delivered at the inaugural conference of the Pepperdine Institute on Law, Religion, and Ethics, "Can the Ordinary Practice of Law be a Religious Calling?," held on February 6-7, 2004 at Pepperdine University School of Law. In thinking about the practice of law as a religious calling, Levine argues that we should first consider the broader issue of the general relevance of religion to various areas of life, including work. From a perspective of Jewish law and ethics, moral conduct comprises an imperative at home and at the workplace no less than at …
Taking Prosecutorial Ethics Seriously: A Consideration Of The Prosecutor's Ethical Obligation To Seek Justice In A Comparative Analytical Framework, Samuel J. Levine
Taking Prosecutorial Ethics Seriously: A Consideration Of The Prosecutor's Ethical Obligation To Seek Justice In A Comparative Analytical Framework, Samuel J. Levine
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This article examines the complex nature of the prosecutor's broad obligation to seek justice through a consideration of the similarly broad directive in Jewish law requiring that "in all [of] your ways acknowledge [God]." While many have critiqued the broad directives governing a prosecutor's ethical duties, through this comparative analytical framework it can be seen that the prosecutor's broad ethical directive to seek justice serves as a workable and appropriate standard for prosecutorial ethics. In many ways, a prosecutor faces an ethical obligation unlike other attorneys. Ethical obligations require that a prosecutor forgo conduct that would increase the likelihood of …
The Talmudic Rule Against Self-Incrimination And The American Exclusionary Rule: A Societal Prohibition Versus An Affirmative Individual Right, Suzanne Darrow-Kleinhaus
The Talmudic Rule Against Self-Incrimination And The American Exclusionary Rule: A Societal Prohibition Versus An Affirmative Individual Right, Suzanne Darrow-Kleinhaus
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No abstract provided.
Playing God: An Essay On Law, Philosophy, And American Capital Punishment, Samuel J. Levine
Playing God: An Essay On Law, Philosophy, And American Capital Punishment, Samuel J. Levine
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This article looks at the capital sentencer's decision: Whether a death-eligible defendant will in fact receive the death sentence. Based in part on an examination of Jewish law and philosophy, Professor Levine identifies three particular areas in which it can be said that the Supreme Court requires the capital sentencer to "play God." First, capital sentencers are asked to ascertain the degree of a defendant's culpability by looking at factors that affect free will and victim impact evidence, implicating moral luck. Capital sentencers are also required to determine a person's total moral worth by considering character evidence. Finally, the Supreme …
Teshuva: A Look At Repentance, Forgiveness And Atonement In Jewish Law And Philosophy And American Legal Thought, Samuel J. Levine
Teshuva: A Look At Repentance, Forgiveness And Atonement In Jewish Law And Philosophy And American Legal Thought, Samuel J. Levine
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Professor Levine examines the atonement model and its relevance to American law. He outlines and explains the necessary steps by the wrongdoer for atonement: repentance, apology, reparation and penance. The wronged party then has the obligation of reconciliation for the process to be complete. Despite the prominent position it has held for millennia in religious thinking, the atonement model is relatively new to American legal theory. Professor Stephen Garvey's attempt to offer a systematic depiction and analysis of the process of atonement and its possible relevance to American law appears to represent the most extensive effort to date. Any application …
Capital Punishment And Religious Arguments: An Intermediate Approach, Samuel J. Levine
Capital Punishment And Religious Arguments: An Intermediate Approach, Samuel J. Levine
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Determining the place and use of capital punishment in the American legal system is a challenging affair and one that is closely associated with and determined by religion's role in American legal decision-making. Both capital punishment and religion are controversial issues, and tend to challenge legal scholars and practitioners about whether they should function together or alone as valid parts of the legal system in the United States. Professor Levine argues that religious arguments should be employed to interpret and explain American legal thought when the need or proper situation arises. He uses capital punishment as an example of how …
Teaching Jewish Law In American Law Schools: An Emerging Development In Law And Religion, Samuel J. Levine
Teaching Jewish Law In American Law Schools: An Emerging Development In Law And Religion, Samuel J. Levine
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In recent years, religion has gained an increasing prominence in both the legal profession and the academy. Through the emergence of the "religious lawyering movement," lawyers and legal scholars have demonstrated the potential relevance of religion to many aspects of lawyering. Likewise, legal scholars have incorporated religious thought into their work through books, law journals and classroom teaching relating to various areas of law and religion. In this Essay, Levine discusses one particular aspect of these efforts, namely, the place of Jewish law in the American law school curriculum. Specifically, he outlines briefly three possible models for a course in …
An Introduction To Legislation In Jewish Law, With References To The American Legal System, Samuel J. Levine
An Introduction To Legislation In Jewish Law, With References To The American Legal System, Samuel J. Levine
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Levine examines the roles of legislative and judicial bodies, in the context of a discussion of broader principles of legislation in the Jewish legal system. In recent years, American legal scholars have increasingly looked to Jewish law as a model of an alternative legal system that considers many of the issues present in the American legal system. In relation to the roles of legislative and judicial bodies, the Jewish legal system provides a particularly illuminating contrast to the American legal system, in part because in Jewish law, the same authority, the Sanhedrin, or High Court, serves in both a legislative …
Unenumerated Constitutional Rights And Unenumerated Biblical Obligations: A Preliminary Study In Comparative Hermeneutics, Samuel J. Levine
Unenumerated Constitutional Rights And Unenumerated Biblical Obligations: A Preliminary Study In Comparative Hermeneutics, Samuel J. Levine
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In his 1986 Yale Law Journal article, Robert Cover wrote of an explosion of legal scholarship placing interpretation at the crux of the enterprise of law. As part of the continuing emphasis on hermeneutics in constitutional interpretation, a body of literature has emerged comparing constitutional textual analysis to Biblical hermeneutics. This scholarship has been based on the recognition that, like the Constitution, the Bible functions as an authoritative legal text that must be interpreted in order to serve as the foundation for a living community. Levine looks at a basic hermeneutic device common to both Biblical and constitutional interpretation, the …
Jewish Legal Theory And American Constitutional Theory: Some Comparisons And Contrasts, Samuel J. Levine
Jewish Legal Theory And American Constitutional Theory: Some Comparisons And Contrasts, Samuel J. Levine
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In this article, Levine explores some of the ways in which Jewish law may shed light on issues in American constitutional theory. While acknowledging that there are fundamental differences between a religious legal system and a secular one, he attempts to show that certain conceptual similarities between American law and Jewish law allow for meaningful yet cautious comparison of the two systems. Part I provides a broad historical and analytical overview of interpretation in Jewish law. Part II of the Article offers a specific conceptual framework for comparing Jewish law with American law. Levine considers questions of flexibility in legal …
The Broad Life Of The Jewish Lawyer: Integrating Spirituality, Scholarship And Profession, Samuel J. Levine
The Broad Life Of The Jewish Lawyer: Integrating Spirituality, Scholarship And Profession, Samuel J. Levine
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The religious individual faces the constant challenge of reconciling religious ideals with the mundane realities of everyday life. Indeed, it is through the performance of ordinary daily activities that a person can truly observe such religious duties as serving God and loving one's neighbor. For the Orthodox Jew, an intricate set of religious laws and principles governs every area of life. In choosing a career, an Orthodox Jew must therefore be concerned that professional obligations not interfere with the fulfillment of religious ones. While religious duties impose obligations on the religious individual, at the same time they provide opportunities to …