AMERICAN AND JEWISH LAW IN COMPARATIVE PERSPECTIVE

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1 AMERICAN AND JEWISH LAW IN COMPARATIVE PERSPECTIVE Dr. Mark Goldfeder PURPOSE AND SCOPE: This comparative course is designed to: 1. Introduce students to the concepts, methods and contemporary issues in Comparative Law. 2. Comparatively analyze the origins, processes, structures and codes in the American and Judaic legal systems and traditions. 3. Focus on specific substantive differences between American and Talmudic law, and the ethical and practical considerations underlying them. The current trend toward globalization has renewed interest in comparative law. The era of legal isolationism is coming to an end, and there has been an increased focus on the similarities between legal systems in forging global discourse across jurisdictions. By comparing the structure of the Jewish legal system with the American one, students will come to understand the foundational concerns that go into creating any legal system, and to better analyze on an ideological plane what the law should be. We will begin the semester by looking at the foundational concerns with any legal system: what is the goal of a legal system and what should it be, what is the role of the central text (the Constitution or the Torah) and who has authority to interpret it, and whether there is room for pluralism within the American or Jewish legal systems. The second half of the semester will focus on substantive issues including abortion, capital punishment, and duress - and analyze the difference between the American legal approach and the halachic approach. The focus of the independent readings will be on primary sources including several cases and Talmudic excerpts. Through understanding the differences between the American and Jewish legal systems, students will develop a critical understanding and concomitantly, an appreciation for the nuances of the law as well as the legal structure as a whole. REQUIREMENTS: Students are expected to complete the assigned readings for each class and be prepared to engage in discussion about them. To facilitate the latter, each student should type up a brief (i.e. one or two paragraphs) response to the week s readings thoughts, ideas, points of interest, critiques, questions to be circulated via before each class to the instructor and other class participants. This is meant to be an informal forum and an opportunity freely to explore and express the ideas raised by the readings, so students will not be graded on the content of these responses. However, the prompt submission of these responses (i.e. prior to every meeting = at least an hour before) is considered to be an important part of participation in the class and will be graded as such.

2 Students will have the option of either a) writing a final paper, or b) taking a final exam. The paper would be 20 to 25 pages in length, due at the end of the semester, and would allow the student to better explore an additional aspect of comparative law in depth. Students will be able to choose from a list of suggested topics, or come up with one on their own, that deals with structural or substantive differences between American and Jewish law. Choice of topic should be determined in consultation with the instructor. The final exam would involve applying the ideas that we discuss in class. Students will be given 4-6 complex fact patterns that they will need to analyze under American law and under Jewish law, and discuss the different ethical considerations that arise under each legal system as applied to these facts. SYLLABUS PART I: STRUCTURAL DIFFERENCES; LAW, FUNCTIONS, AND FUNCTIONARIES Introduction to Jewish Law Legislating Ethics Does Jewish Law Legislate Ethics? Does American Law Legislate Ethics? Should legal systems legislate ethics? Text as a Foundation - RB Marcin, Ideological Pluralism and Government Regulation of Private Morality, Cap. UL Rev., 1977, 7: Aharon Lichtenstein, Does Jewish Tradition Recognize an Ethic Independent of Halakha? Modern Jewish Ethics, Theory and Practice, ed. Marvin Fox (Columbus: Ohio State University Press, 1975). How does Jewish Law Analyze the Text from the Torah? How does American Law Analyze the Text from the Constitution? Is having a text a limitation, and how do judicial bodies deal with it? Should there be a difference between the Torah and the Constitution? - Samuel J. Levine, Jewish Legal Theory and American Constitutional Theory: Some Comparisons and Contrasts, 24 Hastings Const. L.Q. 441 (1997) - Scalia, Antonin, A Matter of Interpretation (Princeton, NJ: Princeton University Press, 1997), 3-48

3 Authority of Interpretation Who can interpret Jewish law? Who can interpret American law? Is interpreting the same thing as applying? What authority is given to the judges or rabbis to legislate? Pluralism in Law - Grey, Thomas, Do We Have an Unwritten Constitution? Stanford Law Review 27 (1975), Hurd, Heidi, Interpreting Authorities, in Marmor (ed.), Law and Interpretation, What role is there for the minority opinion in Jewish law and American law? Do rulings need to be unanimous or can there be disagreement? Role of the Court - Jeffrey I. Roth, Responding to Dissent in Jewish Law: Suppression Versus Self-Restraint, 40 Rutgers L. Rev. 31 (1987) - Steven A. Peterson, Dissent in American Courts, The Journal of Politics, Vol. 43, No. 2 (May 1981) pp Is the court s power to enforce the laws optional or mandatory? Is there a difference between American Law and Talmudic Law in the court s power over individuals? Can someone be compelled to appear in court? Does a person get his choice of courts or is he presumed to submit to the court s jurisdiction? - Samuel J. Levine, A Look at American Legal Practice Through a. Perspective of Jewish Law,Ethics, and Tradition: A. Conceptual Overview, 20 Notre Dame J. L. Ethics & Pub. Pol'y 12 (2006) pp Civil and Criminal Procedure PART II: SUBSTANTIVE DIFFERENCES What types of witnesses are allowed in a Jewish court? What types of witnesses are allowed in an American court? How does the presence of a jury affect the legal proceedings? Do American courts and Jewish courts differ in terms of appeals process? Should appeals be allowed? Who should have the burden of proof in a case? - Norman Lamm, The Fifth Amendment and Its Equivalent in the Halakhah, 5 Judaism 53, 56 (Winter 1956) - Suzanne Darrow-Kleinhaus, The Talmudic Rule Against Self-Incrimination and the American Exclusionary Rule: A Societal Prohibition Versus an Affirmative Individual Right, 21 N.Y. L. SCH. J. INT L & COMP. L. 205 (2002)

4 Civil Rights Is the concept of assigning individual rights unique to American law or is there an equivalent in Jewish law? How have the American courts interpreted or extended these rights? Does Jewish law afford the same types of rights as American law? Does the development of civil rights jurisprudence in American law mirror the development in Jewish law? Homosexuality (First Case Study) How does Jewish law view homosexuality? How does American law view homosexuality? Is the dichotomy in American Law religiously grounded or are there other motivations? - Dabiel Rynhold, Compassion and Halakhic Limits: Orthodoxy and Homosexuality: An Authentic Orthodox View by Chaim Rapoport, The Edah Journal, 5.1 (2005) - Tribe, Laurence H., Lawrence v. Texas: The Fundamental Right That Dare Not Speak Its Name, 4 Dukeminier Awards: Best Sexual Orientation L. Rev. 145 (2006). Abortion (Second Case Study) How does Jewish law view abortion? How does American law view abortion? Are the issues the same in both legal systems, or are the issues different? - Kenneth Shuster, A Halachic Overview of Abortion, 26 Suffolk U. L. Rev. 641 (1992) Fallon, Richard H. Jr., If Roe Were Overruled: Abortion and the Constitution in a Post-Roe World, 51 St. Louis U.L.J. 611 ( ). The Right to Die (Third Case Study) Does one have the right to die? Should one have the right to die? How do American law and Jewish law view suicide? Is there a difference in conception between completed suicide and attempted suicide? What about assisted suicide? What is the closest legal parallel to assisted suicide that the American courts rely on? What is the closest legal parallel to assisted suicide that the Jewish courts rely on? - Darrel W. Amundsen, The Ninth Circuit Court's Treatment of the History of Suicide by Ancient Jews and Christians in Compassion in Dying v. State of Washington: Historical Naivete or Special Pleading?, 13 Issues L. & Med. 365 (1998) - Paula Walter, The Doctrine of Informed Consent: A Tale of Two Cultures and Two Legal Traditions, 14 Issues L. & Med. 357 (1999)

5 Criminal Law What are the requirements to be criminally liable in American Law? What are the elements of a crime in Jewish law? - Murder by Gruma: Causation in Homicide Case Under Jewish Law, 80 B.U.L. Rev (2000). Acts and Omissions (First Case Study) When can you be guilty for a failure to act in American Law or Jewish Law? What are the different rationales for the differences between the legal systems? Why is there communal responsibility under Jewish law and not under American Law? What are the limits to communal responsibility under Jewish law? - Besser & Kaplan, The Good Samaritan: Jewish and American Legal Perspectives, 10 J. L. & Religion 193 ( ) Defenses (Second Case Study) What defenses are available in Jewish law? What defenses are available in American law? Does Jewish law account for a heat of passion defense? How do the legal systems differ on self defense? - George P. Fletcher, Self-Defense As A Justification for Punishment, 12 Cardozo L. Rev. 859 (1991) - J. David Jacobs, Privileges for the Use of Deadly Force Against A Residence- Intruder: A Comparison of the Jewish Law and the United States Common Law, 63 Temp. L. Rev. 31 (1990) Punishment What are the different means of punishment under American law and Jewish law? What are the limitations on punishment? How has the Eighth Amendment Against Cruel and Unusual Punishment been applied as to Capital Punishment? How does Judaism view capital punishment? Is there a difference between having capital punishment on the books and how it s applied? What types of punishments are allowed in Talmudic law? - Steven Davidoff, A Comparative Study of the Jewish and the United States Constitutional Law of Capital Punishment, 3 ILSA J. Int'l & Comp. L. 93 (1996) - Samuel J. Levine, Capital Punishment in Jewish Law and Its Applications to the American Legal System: A Conceptual Overview, 29 St. Mary's L. J (1998)

6 Family Law What are the Grounds for Divorce in New York? What are the grounds for divorce under Jewish Law? Why does New York not adopt the irreconcilable differences that exist in other states? Why is the halachic and constitutional controversy surrounding the New York Get Law? - Michael Broyde, The 1992 New York State Get Law, Tradition (Summer 1995) - Edward S. Nadel, New York's Get Law: A Constitutional Analysis, 27 Col. J. L. & Soc. Probs. 55 (1993) Property Law When is something ownerless according to Jewish Law and American Law? How is something acquired according to Jewish law and American law? What is the principle underlying this distinction? - Carlos Martínez, Of Barry Bonds, Baseballs, and the Law, St. Clara University School of Law, (Volume 24, Issue 3, November 2002) - Ora Sheinson, Lessons from the Jewish Law of Property Rights for the Modern American Takings Debate, 26 Colum. J. Envtl. L. 483 (2001) Interaction with Other Legal Systems How does Jewish law treat choice of law questions? How does American Law deal with choice of law questions? Look specifically at Dina D malchuta Dina and Jewish attitude toward going to other courts. - Joshua Metzger, The Eruv: Can Government Constitutionally Permit Jews to Build a Fictional Wall Without Breaking the Wall Between Church and State, 4 Nat'l Jewish L. Rev. 67 (1989) - Ginnine Fried, Collision of Church and State: A Primer to Beth Din Arbitration and the New York Secular Courts, 31 Fordham Urb. L.J. 633 ( )

7 Paper Topics The following are a list of suggested paper topics comparing American Law and Jewish Law. These are general topics that should be more narrowly defined in your paper. You may also choose another topic in a similar vein with prior approval from the Professor. You must make an appointment to discuss the paper with the Professor, even if you are choosing one of these suggested topics. 1. Exigent Circumstances in Jewish Law v. American Law 2. Tax Law in American Law and Jewish Law 3. Bankruptcy Law: Compare Jewish Law perspective of the propriety of discharging personal debts with the American system. 4. Tort Law: Causation in American Law v. Jewish Law 5. Contract Law: What is adequate consideration under Jewish Law v. American Law 6. Damages in American Law v. Jewish Law 7. Commercial Law: Economic Competition in Jewish Law and American Law 8. Corporate Law: To what extent is a corporation an independent entity in Jewish and American Law? 9. Employment Law: What are unconscionable terms of employment between Jewish Law and American Law? 10. First Amendment Law: What are the limits of free speech between Jewish Law and American Law? 11. Legal Ethics in Jewish Law v. American Law: Duty of Confidentiality 12. Intellectual Property Law: Do you own your idea in Jewish Law and American Law. 13. Juvenile Punishment in Jewish Law v. American Law Topics Must Be Approved by Professor

Teaching Jewish Law in American Law Schools Part II: An Annotated Syllabus

Digital Commons @ Touro Law Center Scholarly Works Faculty Scholarship 2002 Teaching Jewish Law in American Law Schools Part II: An Annotated Syllabus Samuel J. Levine Touro Law Center, slevine@tourolaw.edu