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Judicial Rhetoric & Lawyers' Roles, Samuel J. Levine Jan 2015

Judicial Rhetoric & Lawyers' Roles, Samuel J. Levine

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Notwithstanding the rich scholarly literature debating the proper roles of lawyers and the precise contours of lawyers’ ethical conduct, as a descriptive matter, the American legal system operates as an adversarial system, premised in part upon clear demarcations between the functions of different lawyers within the system. Broadly speaking, prosecutors have the distinct role of serving justice, which includes the duty to try to convict criminal defendants who are deserving of punishment, in a way that is consistent with both substantive and procedural justice. In contrast, private attorneys have a duty to zealously represent the best interests of their clients ...


Foreword To The Conference: The Law: Business Or Profession? The Continuing Relevance Of Julius Henry Cohen For The Practice Of Law In The Twenty-First Century, Samuel J. Levine Jan 2013

Foreword To The Conference: The Law: Business Or Profession? The Continuing Relevance Of Julius Henry Cohen For The Practice Of Law In The Twenty-First Century, Samuel J. Levine

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No abstract provided.


A Look At The Establishment Clause Through The Prism Of Religious Perspectives: Religious Majorities, Religious Minorities, And Nonbelievers, Samuel J. Levine Jan 2012

A Look At The Establishment Clause Through The Prism Of Religious Perspectives: Religious Majorities, Religious Minorities, And Nonbelievers, Samuel J. Levine

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This article traces the Court’s Establishment Clause jurisprudence through several decades, examining a number of landmark cases through the prism of religious minority perspectives. In so doing, the Article aims to demonstrate the significance of religious perspectives in the development of both the doctrine and rhetoric of the Establishment Clause. The Article then turns to the current state of the Establishment Clause, expanding upon these themes through a close look at the 2004 and 2005 cases Elk Grove Unified School District v. Newdow, Van Orden v. Perry, and McCreary County v. American Civil Liberties Union of Kentucky. The article ...


Rlt: A Preliminary Examination Of Religious Legal Theory As A Movement, Samuel J. Levine Jan 2011

Rlt: A Preliminary Examination Of Religious Legal Theory As A Movement, Samuel J. Levine

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No abstract provided.


Taking The Ethical Duty To Self Seriously: An Essay In Memory Of Fred Zacharias, Samuel J. Levine Jan 2011

Taking The Ethical Duty To Self Seriously: An Essay In Memory Of Fred Zacharias, 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 Jan 2010

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 ...


Untold Stories Of Goldman V. Weinberger: Religious Freedom Confronts Military Uniformity, Samuel J. Levine Jan 2010

Untold Stories Of Goldman V. Weinberger: Religious Freedom Confronts Military Uniformity, Samuel J. Levine

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In 1986, the United States Supreme Court handed down a 5-4 decision ruling that Air Force regulations prohibiting Simcha Goldman from wearing a yarmulke while in uniform did not violate Goldman’s First Amendment right to the free exercise of religion. The Court’s majority opinion, which accepted the government’s assertion that allowing Goldman to wear a yarmulke would unduly upset important military interests, drew unusually harsh responses from both dissenting justices and legal scholars. Yet, upon closer examination, perhaps what stands out most about the events surrounding the Goldman decision is the untold story of the case, which ...


Applying Jewish Legal Theory In The Context Of American Law And Legal Scholarship: A Methodological Analysis, Samuel J. Levine Jan 2010

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.


The Supreme Court's Hands-Off Approach To Religious Doctrine: An Introduction, Samuel J. Levine Jan 2009

The Supreme Court's Hands-Off Approach To Religious Doctrine: An Introduction, Samuel J. Levine

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Although the current state of the United States Supreme Court's Religion Clause jurisprudence is an area of considerable complexity, the Court's approach is largely premised upon a number of basic underlying principles and doctrines. This Symposium issue explores an underlying principle of the Supreme Court's current Religion Clause jurisprudence, the Court's hands-off approach to questions of religious practice and belief. The Symposium is based on the program of the Law and Religion Section at the 2008 Annual Meeting of the Association of American Law Schools, in which a panel of leading scholars was asked to evaluate ...


Of Inkblots And Omnisignificance: Conceptualizing Secondary And Symbolic Functions Of The Ninth Amendment, In A Comparative Hermeneutic Framework, Samuel J. Levine Jan 2009

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 ...


Louis Marshall, Julius Henry Cohen, Benjamin Cardozo, And The New York Emergency Rent Laws Of 1920: A Case Study In The Role Of Jewish Lawyers And Jewish Law In Early Twentieth Century Public Interest Litigation, Samuel J. Levine Jan 2008

Louis Marshall, Julius Henry Cohen, Benjamin Cardozo, And The New York Emergency Rent Laws Of 1920: A Case Study In The Role Of Jewish Lawyers And Jewish Law In Early Twentieth Century Public Interest Litigation, Samuel J. Levine

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In this Article, Levine examines the litigation surrounding the New York Emergency Rent Laws of 1920. In particular, he focuses upon a series of cases litigated by two of the most prominent Jewish lawyers in United States in the first half of the twentieth century: Louis Marshall and Julius Henry Cohen. Among other notable aspects of the litigation, the cases reached the New York Court of Appeals and the United States Supreme Court, which at that time included two of the most eminent jurists in the history of the United States, Judge Benjamin N. Cardozo and Justice Oliver Wendell Holmes ...


Reflections On Responsibilities In The Public Square, Through A Perspective Of Jewish Tradition: A Brief Biblical Survey, Samuel J. Levine Jan 2007

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 Jan 2006

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 ...


A Look At American Legal Practice Through A Perspective Of Jewish Law, Ethics, And Tradition: A Conceptual Overview, Samuel J. Levine Jan 2006

A Look At American Legal Practice Through A Perspective Of Jewish Law, Ethics, And Tradition: A Conceptual Overview, 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 ...


Richard Posner Meets Reb Chaim Of Brisk: A Comparative Study In The Founding Of Intellectual Legal Movements, Samuel J. Levine Jan 2006

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 Jan 2006

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 ...


Rediscovering Julius Henry Cohen And The Origins Of The Business/Profession Dichotomy: A Study In The Discourse Of Early Twentieth Century Legal Professionalism, Samuel J. Levine Jan 2005

Rediscovering Julius Henry Cohen And The Origins Of The Business/Profession Dichotomy: A Study In The Discourse Of Early Twentieth Century Legal Professionalism, Samuel J. Levine

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This article addresses one of the central contemporary debates over the nature of the practice of law, reflected in the business/profession dichotomy. Specifically, the article presents an exploration of the discourse and underlying attitudes of early twentieth century legal professionalism, in the context of a close analysis of Cohen's 1916 classic, The Law: Business or Profession?, a highly influential work that is a standard citation in the contemporary debate. The article contrasts Cohen's rhetoric and underlying approach to professionalism against the anti-Semitism, nativism, classism, economic protectionism, and general elitism often expressed by leaders of the early twentieth ...


Portraits Of Criminals On Bruce Springsteen's Nebraska: The Enigmatic Criminal, The Sympathetic Criminal, And The Criminal As Brother, Samuel J. Levine Jan 2005

Portraits Of Criminals On Bruce Springsteen's Nebraska: The Enigmatic Criminal, The Sympathetic Criminal, And The Criminal As Brother, Samuel J. Levine

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Deconstructing Bruce Springsteen's album, "Nebraska," Levine demonstrates how Springsteen's songs challenge modern paradigms of crime, punishment and the American criminal justice system. Professor Levine deconstructs the message of the album by introducing the reader to the three categories of criminals who appear on the album: The enigmatic criminal; the sympathetic criminal; and the "criminal as brother." Professor Levine first examines the enigmatic criminal who materializes in Springsteen's title track, "Nebraska." This criminal shows no remorse for his crime and makes no attempt to justify or explain his actions. The enigmatic criminal demonstrates how an exploration of the ...


Taking Prosecutorial Ethics Seriously: A Consideration Of The Prosecutor's Ethical Obligation To Seek Justice In A Comparative Analytical Framework, Samuel J. Levine Jan 2004

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 ...


Professionalism Without Parochialism: Julius Henry Cohen, Rabbi Nachman Of Breslov, And The Stories Of Two Sons, Samuel J. Levine Jan 2003

Professionalism Without Parochialism: Julius Henry Cohen, Rabbi Nachman Of Breslov, And The Stories Of Two Sons, Samuel J. Levine

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Professor Levine addresses the question of whether the practice of law a business or a profession and looks at sources where practitioners might draw inspiration for ethical behaviors. He examines two works: a 1916 book by Julius Henry Cohen - The Law: Business or Profession?; and a tale by Chasidic master Rabbi Nachman of Breslov. Both works tell the story of two sons from two different fathers with different ethical natures that manifest in their different choices of and approaches to their careers. Professor Levine uses these two parables to suggest that a more inclusive question than those posed above: whether ...


Taking Ethical Discretion Seriously: Ethical Deliberation As Ethical Obligation, Samuel J. Levine Jan 2003

Taking Ethical Discretion Seriously: Ethical Deliberation As Ethical Obligation, Samuel J. Levine

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This Article builds on and responds to the work of a number of leading ethics scholars who have offered alternatives to the prevailing model of legal ethics. Specifically, the Article proposes a "Deliberative Model," which posits that the lawyer's professional responsibility carries with it a duty on the individual lawyer to exercise discretion through consideration of the relevant ethical issues. Thus, the Article takes seriously the principle of ethical discretion, respecting the role of individual ethical decision-making but requiring that such decision-making be carried out through a justifiable process of ethical deliberation.


Playing God: An Essay On Law, Philosophy, And American Capital Punishment, Samuel J. Levine Jan 2001

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 ...


Law, Ethics, And Religion In The Public Square: Principles Of Restraint And Withdrawal, Samuel J. Levine Jan 2000

Law, Ethics, And Religion In The Public Square: Principles Of Restraint And Withdrawal, Samuel J. Levine

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In recent years, scholars have begun to recognize and discuss the profound questions that arise in attempting to determine the place of religion in the law and the legal profession. This discussion has emerged on at least two separate yet related levels. On one level, scholars have debated the place of religion in various segments of the public sphere, including law and politics. On a second level, lawyers have expressed the aim to place their professional values and obligations in the context of their overriding religious obligations. This article explores, from both an ethical and jurisprudential perspective, the question of ...


Teshuva: A Look At Repentance, Forgiveness And Atonement In Jewish Law And Philosophy And American Legal Thought, Samuel J. Levine Jan 2000

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 ...


An Introduction To Legislation In Jewish Law, With References To The American Legal System, Samuel J. Levine Jan 1999

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 ...


Seeking A Common Language For The Application Of Rule 11 Sanctions: What Is "Frivolous"?, Samuel J. Levine Jan 1999

Seeking A Common Language For The Application Of Rule 11 Sanctions: What Is "Frivolous"?, Samuel J. Levine

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In this article, Levine analyzes some of the complex issues involved in attempting to apply the ambiguous concept of frivolousness in the context of Rule 11 sanctions. He documents the inconsistency in judicial interpretation and application of Rule 11 frivolousness. Relying in part on the observations and concerns expressed by scholars, practitioners, and judges themselves who have lamented the lack of uniformity and the troubling results that have followed, Levine examines closely some of the problems inherent in the current standards. After demonstrating the wide range of approaches put forth by both judges and scholars to the interpretation of Rule ...


Teaching Jewish Law In American Law Schools: An Emerging Development In Law And Religion, Samuel J. Levine Jan 1999

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 ...


Rethinking The Supreme Court’S Hands-Off Approach To Questions Of Religious Practice And Belief, Samuel J. Levine Jan 1998

Rethinking The Supreme Court’S Hands-Off Approach To Questions Of Religious Practice And Belief, Samuel J. Levine

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In recent years, the United States Supreme Court has shown an increasing unwillingness to engage in deciding matters that relate to the interpretation of religious practice and belief. While the Justices have articulated valid concerns concerning these cases, courts should not allow these concerns to deter them from making decisions vital to the effective adjudication of Free Exercise and Establishment Clause cases. In fact, it appears that as a result of the Court's increasing refusal to consider carefully the religious questions central to many cases, the Court often tends to group together religious claims and practices, regardless of the ...


Halacha And Aggada: Translating Robert Cover’S Nomos And Narrative, Samuel J. Levine Jan 1998

Halacha And Aggada: Translating Robert Cover’S Nomos And Narrative, Samuel J. Levine

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Levine takes a look at Robert Cover's 1983 Harvard Law Review article, Nomos and Narrative. Nomos is characterized by its heavy reliance on Jewish sources as a basis for analyzing contemporary American legal theory. The basis of narrative is the thesis that no set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning, so law becomes not merely a system of rules to be observed, but a world in which we live. Cover's explanation of these ideas coincided with and influenced the emergence of what has become known as "legal ...


Unenumerated Constitutional Rights And Unenumerated Biblical Obligations: A Preliminary Study In Comparative Hermeneutics, Samuel J. Levine Jan 1998

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 ...