Chaim Saiman

This chapter focuses on fiduciary principles at work in classical Jewish law. Using modern (Western) legal concepts, it places disparate halakhic rules into a rubric not found in classical Jewish legal sources. The discussion proceeds by examining the origins of fiduciary concepts in the Mishnah and how they fit into the larger system of Jewish civil liability. From there, the chapter considers fiduciary rules within the laws of bailments, guardianship fiduciary duties in agency and partnership law. The moves to contrast the relatively minimal duties of private law fiduciaries with the far more expansive obligations incumbent upon surrounding public fiduciaries, and concludes with a tentative account of the differences between Jewish and common law perspectives on fiduciary law.

From Jesus and Paul down to the present, critics have long argued that the Talmudic tradition contorts Biblical commandments into a complex maze of rules, sub-rules and exceptions that looses touch with ethical spirit and purpose that underlie the Bible’s legislation. By taking a deep dive into the Jewish legal analysis of the laws of worker’s wage-payments (halanat schar sachir), this article investigates the gap between legal rules, moral intuitions and social policy in a discrete area of Jewish law (halakhah). As a case-study, the wage-payment laws offer an example of halakhah that should be easy to assess from an ethical and comparative perspective. Wage-payment undoubtedly qualifies as one of the Bible’s “rational” commandments that is intended to ameliorate the plight of downtrodden workers, and which finds expression in other legal systems. Nevertheless, examination of the sources shows that even in the “easy” case of wage-payment, Talmudic elaboration yields a number of inco...

This Article examines the relationship between the formalism of an area of law, and whether it plays a central role in the legal system. English and American law were traditionally comprised of formalist private law doctrines. The influence of legal realism and the New Deal, however, caused these systems to diverge. While American private law was recast in realist terms, it also became less significant to the overall legal system. In its place, procedure and statutory interpretation emerged, and in turn became more formalized. Realism was never as influential in England where private law remains more formal and at the center of legal analysis.
Procedural and interpretation doctrines, by contrast, are less prevalent and less formalized.
These trends are related. Law is attracted to formalism because a confined account of judging provides the necessary contrast between constrained judicial decisionmaking and unfettered political policymaking. When private law is formalized, it can sustain the distinction between law and politics. But when private law is seen as too pliable, pressure mounts to recast the law in a more formalist mode. Realism did not eliminate formalism from American law but caused it to migrate from the receding private law to the ascendant interpretation and procedure doctrines.

Though the Talmud offers a near-endless supply of halakhic rules, its legal discussions are also a medium through which the Rabbis take up issues that we might understand as philosophical, political, or theological. The recent daf yomi (or " daily page ") Shabbat 63 presents a compact example. On the surface, the legal issue is nothing more profound than the technicalities of what can and cannot be transported on Shabbat. Yet a careful reading shows that this is simultaneously an exploration of war, peace, and the nature of manhood.

Since the passing at the age of 81 of Rabbi Aharon Lichtenstein, or Rav Aharon, as he was known, on April 20, there has been a steady stream of tributes and obituaries. The facts of his life are readily available with a few keystrokes, and his Talmudic prowess is both well-known and nearly impossible to describe to the uninitiated. Therefore, someone who neither lives in Israel, nor studies Talmud, or who is not Jewish may legitimately ask: Why should I care? What does this Talmudic genius have to do with me? Rav Aharon, the longtime Rosh Yeshiva of Yeshivat Har Etzion in Israel, matters because he represents something rare and desperately missing in contemporary discourse: In his religion, in his politics, and in his disposition, he was a true moderate. The term " moderate " requires some explanation. The designation is often applied to a person of few convictions. In this sense, moderation is the opposite of passion. If one does not have core values, it is easy to compromise. Moderation can be a symptom of flexible values. Not so Rav Aharon. For him, moderation is borne of a burning and lifelong desire to reconcile conflicting truths. He was renowned for speaking passionately and at length of his ideals and convictions. His belief and faith in God was like few others I have witnessed. And compromise, in the sense of a concession where one's values are concerned, was simply not in his otherwise prodigious vocabulary. In many ways he was extreme: in his love of the Torah, the Talmud, and their study. His religious zeal was awesome-in the original sense of the term. Further, there simply was no gap between the high ideals he taught and how he lived them out. His faith in and observance of Judaism, his work ethic, the passion and intensity he brought to every field of endeavor—these are hard to describe in terms that do not sound extreme. Yet he was a moderate in this sense: He taught us that whether in Talmud study or life, we are often confronted with opposing goals, values, and ideals. But rather than assume that one is correct, and the other is false, we should hold them both in what he called a " dialectical tension, " that is, to see each value as positive in its own right and then explore how

Scholars differ as to the degree to which Jewish law is formalistic. This chapter aims to make sense of the debate surrounding formalism in Jewish law by distinguishing between three types of legal formalism: classic formalism, modern formalism, and detail-following formalism. Viewed through the lens of modern formalism, Jewish law is likely less formalistic than commonly assumed as it is not primarily concerned with constraining decision makers. Nor is Jewish legal discourse typi ed by its uni ed conceptual schemas that proceed from abstract concepts to bottom-line decisions in the way that classical formalism proceeds. This chapter introduces an alternative framing termed "detail following formalism," which is typi ed by a religiosity that stresses strict adherence to the multiplicity of legal forms that constitute Jewish law. Detail-following formalism is backed by ritualistic, theological, and mystical concepts that are generally absent from modern law.

This paper offers an examination and critique of the Supreme Court’s doctrine of qualified immunity—the immunity from constitutional tort liability granted to government officials in cases in which the tort was not “clearly established” by prior case law. Currently, courts must engage in a two-pronged inquiry: first, whether the official’s conduct was unconstitutional, and second, whether the unconstitutionality was clearly established. This paper argues that while the first question presents a standard case of common law interpretation and analysis, the second inquiry forces courts to approach the body of constitutional tort law as if it were a legislated code. However, the attempt to impose code-based interpretive techniques onto the common law landscape robs the law of the tools traditionally used to confront the dilemma between continuity and change. The paper argues that the absence of these mediating mechanisms leads to muddled reasoning as well as substantively indefensible o...