Copyright (c) 2009 All rights reserved. http://works.bepress.com/chaim_saiman Recent documents in Chaim Saiman en-us Sun, 31 May 2009 04:17:17 PDT 3600 http://works.bepress.com/chaim_saiman/7 http://works.bepress.com/chaim_saiman/7 Mon, 28 Jul 2008 11:53:36 PDT This essay explores the historical and conceptual connections between private law and nineteenth century classical legal science from the perspective of German, American, and Jewish law. In each context, legal science flourished when scholars examined the confined doctrines traditional to private law, but fell apart when applied to public, administrative and regulatory law. Moving to the contemporary context, while traditional private law scholarship retains a prominent position in German law and academia, American law has increasingly shifted its focus from the language of substantive private law to a legal regime centered on public and procedural law. The essay concludes by raising skepticism over recent calls to reinvigorate the Euro-American dialogue by focusing on traditional private law and scholarship Chaim Saiman http://works.bepress.com/chaim_saiman/6 http://works.bepress.com/chaim_saiman/6 Mon, 28 Jul 2008 11:47:53 PDT Chaim Saiman http://works.bepress.com/chaim_saiman/5 http://works.bepress.com/chaim_saiman/5 Tue, 14 Aug 2007 08:22:54 PDT This article locates the ancient debates between Jesus and the Talmudic rabbis within the discourse of contemporary legal theory. By engaging in a comparative reading of both Gospel and rabbinic texts, I show how Jesus and his rabbinic interlocutors sparred over questions we now conceptualize as the central concerns of jurisprudence. Whereas the rabbis approach theological, ethical and moral issues through an analytical, lawyerly interpretation of a dense network of legal rules, Jesus openly questions whether law is the appropriate medium to structure social relationships and resolve interpersonal conflicts. Through an examination of Talmudic sources, this paper argues the controversies between early Christianity and the nascent rabbinic Judaism (summarized by Paul in terms of Letter vs. Spirit) have the same argumentative architecture as the ongoing debates over law vs. equity, procedural vs. substantive justice, rules vs. standards, formalism vs. instrumentalism, and textualism vs. contextualism. Moreover, the contrast between the Gospels and the emerging rabbinic discourse brings Jesus' bold claims about the role, rule and domain of the law to the fore. Thus while the mainstream representation of Christian legal theory tends towards rules, procedural justice, formalism and textualism, this analysis of primary sources shows that Jesus argued for exactly the opposite. Chaim Saiman http://works.bepress.com/chaim_saiman/4 http://works.bepress.com/chaim_saiman/4 Tue, 14 Aug 2007 08:17:04 PDT This Article is a first-ever attempt to introduce the Briskers--an influential school of late nineteenth century Talmudic interpreters--to the legal academy. The paper describes how at the very moment that secularization and assimilation undermined the traditional legitimizing narratives of Jewish law, the Briskers fused law, theology and science to offer an alternate "scientific" vision of halakha (Jewish law). By recasting the multitude of detailed rules comprising halakha into a system of autonomous legal constructs, the Briskers revolutionized Jewish self-understanding of the halakhic system, and developed a jurisprudence that was able to counteract the social, institutional and intellectual upheavals represented by the haskala and Jewish emancipation. The article first describes the Brisker project on its own terms and then contrasts several prominent features of the Brisker school with analogous trends in nineteenth century German and American legal thought. Chaim Saiman Religion http://works.bepress.com/chaim_saiman/3 http://works.bepress.com/chaim_saiman/3 Tue, 14 Aug 2007 08:17:03 PDT In the past generation, restitution law has emerged as global phenomenon. From its Oxbridge home restitution migrated to the rest of the Commonwealth, and ongoing Europeanization projects have brought the common law of restitution into contact with the Romanist concept of unjust enrichment, further internationalizing this movement. In sharp contrast to the Commonwealth, in the United States, scholarly interest in restitution, in terms of books, articles, treatises, symposia and courses on restitution is meager, at best. Similarly, while restitution, equity and tracing cases receive considerable treatment at the highest levels of the English judiciary, U.S. courts do not seem interested in these issues, and unlike Commonwealth courts, rarely produce theory-laden opinions that attract scholarly attention. The situation is particularly curious because restitution is thought to be the invention of late nineteenth century American scholars. Moreover, as late as the 1970's, the vitality of American restitution was favorably contrasted with the dearth of such law and scholarship in England. This article explains this divergence. I argue that the Commonwealth restitution discourse is largely a product of pre- or anti-realist legal thought which generates skepticism within the American academic-legal establishment. The paper identifies the two dominant camps in American private law thought--the left-leaning redistributionalists and the center-right law and economics movement--and shows that neither has any use for the Commonwealth's discourse. I conclude by analyzing the emerging drafts of the Restatement of Restitution and forecast the future of American restitution law. Chaim Saiman Comparative Law http://works.bepress.com/chaim_saiman/1 http://works.bepress.com/chaim_saiman/1 Tue, 14 Aug 2007 08:17:02 PDT The ALI's Restatement (Third) of Restitution provides one of the most interesting expressions of contemporary legal conceptualism. This paper explores the theory and practice of post-realist conceptualism through a review and critique of the Restatement. At the theoretical level, the paper develops a typology of different forms of conceptualism, and shows that the Restatement has more in common with the high formalism of the nineteenth century than with contemporary modes of private law discourse. At the level of substantive doctrine, the paper explains why labels in fact make a difference, and assesses which recoveries are more (and less) likely under the Restatement's scheme. The final section returns to consider why the Restatement reprises the jurisprudence of classical formalism. I suggest that the mythos of legal conceptualism is necessary for introducing a new field that claims to reflect foundational principles of the common law's system of private ordering. Further this mode of discourse helps overcome the dissonance of creating a new field of law in a work that purports to restate existing doctrine. Chaim Saiman Contracts Commercial Law Legal Education Jurisprudence http://works.bepress.com/chaim_saiman/2 http://works.bepress.com/chaim_saiman/2 Tue, 14 Aug 2007 08:17:02 PDT 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 outcomes. Moreover, since courts must apply two distinctive methods of interpretation to the same set of legal materials, the structure of immunity decisions presents a rare opportunity to do comparative law within a single judicial opinion. By examining the difference between code-inspired and common law methods of analysis, the article provides a fresh look at the confluence of the common law's literary, prudential and interpretive assumptions, and their impact on the formation and application of legal doctrine. Chaim Saiman Constitutional Law Jurisprudence