Samuel J. Levine

A Look at the Establishment Clause Through the Prism of Religious Perspectives: Religious Majorities, Religious Minorities, and Nonbelievers

Samuel J. Levine — Thu, 16 Aug 2012 12:26:23 PDT

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 concludes that the ongoing debates among Supreme Court Justices over the relevance of religious minority perspectives contribute to more general divisions that continue to characterize the current state of the Court’s Establishment Clause jurisprudence.

Symposium: Bob Dylan and the Law, Foreword

Samuel J. Levine — Wed, 04 Apr 2012 06:24:35 PDT

Taken together, the articles in this Symposium Issue provide a journey through both Bob Dylan’s career and the American legal landscape. Befitting a legal prophet, Dylan is often critical, skeptical, and cynical, at times uncompromising in his portrayal of the failures of American law and society. The presentations at the Dylan and the Law Symposium reflected, in part, the disappointment and frustration expressed in Dylan’s words and music. Yet, the speakers at the Symposium echoed another side of Bob Dylan’s work: a refusal to surrender or despair in the face of disheartening reality. Instead, drawing upon Dylan’s prophetic dreams and visions of American law and society, the Symposium produced among the participants a shared sense of advocacy, a desire and hope for a better future—ultimately, perhaps, even a sense of redemption.

RLT: A Preliminary Examination of Religious Legal Theory as a Movement

Samuel J. Levine — Thu, 29 Mar 2012 13:24:11 PDT

Rethinking Self-Incrimination, Voluntariness, and Coercion, Through a Perspective of Jewish Law and Legal Theory

Samuel J. Levine — Thu, 29 Mar 2012 13:24:01 PDT

Hosanna-Tabor and Supreme Court Precedent: An Analysis of the Ministerial Exception in the Context of The Supreme Court’s Hands-Off Approach to Religious Doctrine

Samuel J. Levine — Wed, 30 Nov 2011 08:15:30 PST

The United States Supreme Court‘s review of the decision of the United States Court of Appeals for the Sixth Circuit in the case of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC could lead to a major development in the Court‘s Religion Clause jurisprudence. On one level, Hosanna-Tabor presents important questions regarding the interrelationship between employment discrimination laws and the constitutional rights of religious organizations. The narrow issue at the center of the case is the ministerial exception, a doctrine that precludes courts from adjudicating discrimination claims arising out of disputes between religious institutions and their ministerial employees. This Essay suggests, however, that the real significance of Hosanna-Tabor goes beyond the Court‘s application of the ministerial exception to the particular facts of the case. This Essay looks at the ministerial exception through the broader prism of the Supreme Court‘s hands-off approach to religious doctrine, which prohibits judicial inquiry into a wide range of questions relating to religious practice and belief.

Although a number of courts have adopted and applied the ministerial exception, both the constitutional basis for this principle and its scope are less than clear. Through a close reading of the opinion of the United States Court of Appeals for the Sixth Circuit, this Essay suggests that the outcome in Hosanna-Tabor turns on an analysis of the ministerial exception within the broader context of a hands-off approach to religion. Indeed, in an opinion written by Judge Richard Posner, the United States Court of Appeals for the Seventh Circuit drew an explicit connection between the two doctrines, referring to the ministerial exception, and the hands-off approach more generally . . . .

Likewise, in looking at Hosanna-Tabor, this Essay aims to explore and relate the constitutional concerns underlying both the ministerial exception and the Supreme Court‘s hands-off approach. Specifically, this Essay argues that the Sixth Circuit opinion is inconsistent with Supreme Court precedent, running afoul of the Court‘s hands-off approach by relying on analysis of either the Free Exercise Clause, the Establishment Clause, or both, that requires judicial interpretation of religious doctrine.

Jewish Law From Out Of The Depths: Tragic Choices In The Holocaust

Samuel J. Levine — Thu, 06 Oct 2011 09:14:38 PDT

Taking the Ethical Duty to Self Seriously: An Essay in Memory of Fred Zacharias

Samuel J. Levine — Thu, 06 Oct 2011 09:14:36 PDT

Goldman v. Weinberger: Religious Freedom Confronts Military Uniformity

Samuel J. Levine — Tue, 31 May 2011 05:58:28 PDT

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 differs in significant respects from the official version of both the facts of the dispute and the ensuing litigation. The official narrative characterizes the facts as simply presenting a dispute between a Jewish soldier wanting to wear his yarmulke during work and a commanding officer demanding strict adherence to the military uniform protocol. However, the unofficial narrative demonstrates how much of the story was the result of personal factors, such as personal animosity between parties and passionate opinions from judges that seemed to drive each stage of the legal process.

Miranda, Dickerson, and Jewish Legal Theory: The Constitutional Rule in a Comparative Analytical Framework

Samuel J. Levine — Thu, 26 May 2011 11:58:52 PDT

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 status of a “constitutional rule.” This Essay finds a similar debate among medieval legal authorities over the status of a rule in the Jewish legal system that appears to function in a manner ordinarily reserved for legislation. Some authorities categorize the rule as rabbinic legislation, while others understand the rule as a biblical law with quasi-legislative characteristics. Taking the conceptual comparison a step further, Levine considers ways in which Jewish legal theory might elucidate the nature of the “constitutional rule” delineated in Miranda.

Portraits of Criminals on Bruce Springsteen's Nebraska: The Enigmatic Criminal, The Sympathetic Criminal, and The Criminal as Brother

Samuel J. Levine — Thu, 26 May 2011 11:58:49 PDT

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 criminal mindset may not yield any insight into the mysteries of senseless criminal acts, their causes, or their motivations. Professor Levine next examines the sympathetic criminal who manifests himself in three separate tracks: "Atlantic City"; "Johnny 99"; and "State Trooper." These criminals regret their wrongful acts and provide the listener with sympathetic explanations for their conduct and resulting hardships. Such explanations include a man who turns to crime because he is unable to pay his debts though legal means, a criminal whose jail sentence will cause great emotional hardship on his family, and a criminal whose actions stem from a life filled with loneliness, desperation, and despair. Though one does not excuse their conduct, one begins to understand the motivations underlying the criminal's actions. Lastly, Professor Levine examines Springsteen's portrayal of the "criminal as brother" in the track "Highway Patrolman." This criminal does not openly seek forgiveness or mitigation of his punishment through explanation. Instead, he avoids punishment from the American criminal justice system all together because the patrolman charged with pursuing him is his brother who allows him to flee the country. Professor Levine concludes that "Highway Patrolman" fuels debate over the boundaries of law, loyalty, and the complexity of striking the appropriate balance between justice and mercy.

An Introduction to Legislation in Jewish Law, with References to the American Legal System

Samuel J. Levine — Thu, 26 May 2011 11:58:47 PDT

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 and judicial capacity. Interestingly, though, as a result of the express license for the same authority in Jewish law to serve two separate functions, the two functions are rather clearly delineated, each bounded by specific rules and regulations. Thus, an analysis of the legislative function of the Sanhedrin may shed light on an analysis of the proper legislative function of American courts. A secondary aim of this Article is to illustrate some of the conceptual foundations and functionings of the Jewish legal system evident in the various substantive areas of legislation examined, relying in part on the work of contemporary scholars of Jewish law, again in the hope that the analysis might illuminate conceptual areas of American legal thought. Levine concludes with the hope that this project, building on the increased interest in Jewish law among American legal scholars, will further demonstrate the relevance of Jewish law to the study of American law.

Introductory Note: Symposium on Lawyering and Personal Values – Responding to the Problems of Ethical Schizophrenia

Samuel J. Levine — Thu, 26 May 2011 11:58:44 PDT

In recent years, legal practitioners and scholars alike have identified a growing crisis in the legal profession. Increasingly, lawyers feel dissatisfied with the roles they are expected to play and the conduct demanded of them. In particular, many lawyers see a widening gap between their personal values and those employed in legal practice. In response to the dichotomy between personal and professional values, some lawyers attempt to develop a corresponding dichotomy in their personalities, separating the “professional self” from the “personal self.” Such a response, however, may lead to a kind of “ethical schizophrenia,” a condition in which an individual is placed in the position of trying to adhere to competing and inconsistent ethical systems. There exist numerous and varied sources of ethical values available to lawyers, such as the ABA’s Model Rules of Professional Conduct. Yet the Model Rules, like other codes, have been found to be sorely lacking in offering meaningful guidance to lawyers facing difficult ethical questions. As a result of the inadequacy of the rules, lawyers searching for ethical guidance have looked to other sources of values. Religious values, in particular, have gained increasing prominence in the arena of legal ethics, as they present a comprehensive system of ethics for lawyers seeking to integrate their personal and professional lives. The success of religious values in responding to the ethical needs and problems of lawyers has resulted in what has been called a “religious lawyering movement.” The contributors to this symposium thus provide a number of approaches and viewpoints, based in various value systems, in an effort to combat the current ethical crisis felt by so many lawyers. Through different methods, but sharing a common emphasis on personal values, they offer a variety of responses to the problems of ethical schizophrenia that continue to plague the legal profession.

Taking Ethics Codes Seriously: Broad Ethics Provisions and Unenumerated Ethical Obligations in a Comparative Hermeneutic Framework

Samuel J. Levine — Thu, 26 May 2011 11:58:41 PDT

Ethics scholars have documented the increasingly legislative form of twentieth-century ethics regulations, culminating in the enactment and widespread adoption of the Model Rules of Professional Conduct. Nevertheless, pointing to the presence of broad ethics provisions, a number of leading scholars have questioned the extent to which ethics codes can accurately be conceptualized as a form of legislation. Responding to these critiques, Levine aims to take seriously both the legislative form of ethics codes and their interpretation. Toward that aim, he looks to interpretive methodologies employed in American constitutional law and Jewish law to provide both descriptive and normative models for the analysis of ethics codes. Focusing on three broad provisions that have been the target of criticism, Levine examines three related yet conceptually distinct interpretive methodologies that have been employed to derive unenumerated constitutional rights and unenumerated biblical obligations, then proceeds to apply these methodologies to the interpretation of the three broad ethics provisions. Levine thus presents both on a descriptive level, through an analysis of court opinions, and on a normative level, a comparative framework for interpreting broad ethics provisions to derive and identify unenumerated ethical obligations. He concludes with a call for scholars and courts that have criticized broad ethics provisions to reexamine their approach and consider the viability of adopting the interpretive methods presented.

Reflections on Responsibilities in the Public Square, Through a Perspective of Jewish Tradition: A Brief Biblical Survey

Samuel J. Levine — Thu, 26 May 2011 11:58:39 PDT

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 Jewish communities in the past, the questions themselves may need to be particularized and considered in the context of newly developed conceptual frameworks. Levine shows that the broader questions regarding the responsibilities of the Jewish people toward the public square, including obligations to influence law and public policy, represent concerns that date back to the very origins of the Jewish nation, and continues throughout the Bible. Toward that end, he provides a brief survey of several important stages in the biblical history of the Jewish nation. It begins with the figure of Abraham, founder and father of that nation, then turns to the nation's slavery in, and Exodus from, Egypt, continues with the Revelation at Sinai and the resulting establishment of a sovereign and independent government in the Land of Israel, and concludes with a look at the nation in exile in the Book of Esther. Levine suggests that in each of these settings, though in different ways, Jewish leaders and communities acknowledged and successfully confronted the challenges of maintaining their own unique identity while concomitantly engaging and involving themselves in the interests of the societies surrounding them. For Jewish communities in the United States, the biblical teachings continue to offer important lessons. Contemporary American law and society provide a degree of freedom and personal autonomy that is likely unprecedented among the seemingly countless nations and generations in which the Jewish people have lived in exile. On one level, increased freedom brings increased opportunities for engagement in and potential influence on public policy. Nevertheless, increased involvement in the political arena carries the potential for increased challenges to maintaining the Jewish people's distinct spiritual and ethical integrity. Levine concludes that participation in the public square, however necessary and noble, must always be coupled with careful adherence to abiding moral virtues and values.

Reflections on the Constitutional Scholarship of Charles Black: A Look Back and a Look Forward

Samuel J. Levine — Thu, 26 May 2011 11:58:36 PDT

Charles L. Black Jr. has been one of the most important constitutional scholars in the United States for more than four decades. Professor Black's writings have helped shape the debate in a wide variety of constitutional areas, from racial equality and welfare rights to constitutional amendment, impeachment, and the death penalty. In this essay, Levine briefly surveys a number of Professor Black's articles, focusing on two areas of his scholarship: unnamed human rights and racial justice. By analyzing these two topics, which represent, respectively, Black's most recent scholarship and his most significant early work, Levine attempts to show certain principles and themes that have permeated Black's writings throughout his academic career. Levine concludes this essay by stating that Black has dedicated his scholarship to realizing concretely the goals of the Constitution. To that end, Black has consistently rejected any logic based on abstract models that ignore reality and thereby foster hypocrisy and dishonesty. Black's method of constitutional analysis requires an independence of thought based on a firm commitment to the ideals embodied by the Constitution, coupled with careful observation of the actual society in which the Constitution must function.

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 — Wed, 25 May 2011 06:26:55 PDT

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 century bar who, like Cohen, promoted the notion that law is a profession rather than a business. Although Cohen shared and relied upon many of the concerns of his contemporaries over the commercialization of legal practice, he offered a unique vision of professionalism, one that eschews notions of bias and self-interest in favor of intellectual honesty and a sincere concern for the good of society. The article suggests that, although Cohen's unique approach may have resulted largely from various ways in which his personal life and experiences differed from those of the typical member of the elite legal establishment, a more interesting and more important lesson may be found in Cohen's ability to maintain his own rhetorical integrity and intellectual independence while allying himself with many who shared his goals, if not his sensibilities and sensitivities.

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 — Wed, 25 May 2011 06:26:50 PDT

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, Jr., respectively. One element of the strategy Cohen employed in advocating before these courts adds yet another component to the significance of Jewish lawyers and Jewish law in the context of the Emergency Rent Laws cases. Specifically, in both his briefs and his oral arguments, Cohen relied, in part, on materials from medieval Jewish legal history. Part I of this Article provides a brief background of the New York Emergency Rent Laws, tracing the enactment of the legislation as well as the course of the ensuing litigation. Part II explores the roles of Marshall and Cohen in these cases, placing their contributions in the context of their broader efforts and shared commitments to furthering public and Jewish communal interests. Finally, Part III of the Article focuses on Cohen's reliance on Jewish legal sources and other historical precedents in his arguments supporting the constitutionality of the New York Emergency Rent Laws. In light of the limited substantive relevance of Jewish law to the legal issues surrounding the Emergency Rent Laws, Levine looks at alternative motivations for Cohen's inclusion of these materials in his briefs and arguments. In particular, Cohen's memoirs recall the remark of one of the judges on the New York Court of Appeals suggesting that the reference to Jewish law was an effective method for influencing Cardozo. Levine concludes that this story, even if accurate, was most likely not a reliable reflection of Cohen's reasons for relying on Jewish law, and indeed, that Cohen may have recounted the colorful story primarily as means of entertainment. This conclusion is reached on the basis of a number of factors, including a consideration of Cardozo's attitude toward the law and toward his Jewish heritage, as well as an examination of the interactions of lawyers and judges involved in the New York Emergency Rent Laws Cases. Ultimately, Levine suggests, Cohen's anecdote provides a valuable framework for reflection on the interests and interrelationships that might have influenced judicial decision making in the early twentieth century. Moreover, in light of controversies that have arisen regarding the religious beliefs and personal relationships of members of the current Supreme Court, this exercise has abiding relevance and potential application in the early twenty-first century as well.

Teaching Jewish Law in American Law Schools: An Emerging Development in Law and Religion

Samuel J. Levine — Wed, 25 May 2011 06:26:48 PDT

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 Jewish law in an American law school and considers some of the advantages and disadvantages of each model. The three models are: a Jewish law course that serves as a course in comparative law; Jewish law as a course in international law; and a course that examines Jewish law almost exclusively, with little, if any, reference to other legal systems. Levine then describes the structure he has chosen, in an attempt to synthesize these models, for the seminar in Jewish law that he teaches at St. John's University School of Law. At the end of this essay is an appendix which includes a bibliography of articles, relating primarily to Jewish law, which have appeared in American law journals since 1995.

Unenumerated Constitutional Rights and Unenumerated Biblical Obligations: A Preliminary Study in Comparative Hermeneutics

Samuel J. Levine — Wed, 25 May 2011 06:26:46 PDT

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 identification of unenumerated principles through reference to textually enumerated principles. Levine observes that, in addition to the numerous obligations listed in the Torah, legal authorities have interpreted the Torah to impose many other obligations not enumerated in the text. The Essay suggests that a similar methodology to that employed in Jewish law has been applied to the United States Constitution to derive rights beyond those enumerated in the text. Levine thus examines the ways in which American judges and constitutional scholars have relied on forms of textual analysis that find analogues in the interpretation of the Torah by Jewish legal authorities.

Looking Beyond the Mercy/Justice Dichotomy: Reflections on the Complementary Roles of Mercy and Justice in Jewish Law and Tradition

Samuel J. Levine — Wed, 25 May 2011 06:26:44 PDT

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 adherence to truth and objective logic. Levine begins with a look at the figure of Abraham, the father and founder of the Jewish nation, who embodied the characteristic of kindness, but exercised it within the context of the pursuit of justice. He then examines the role and character of communal leaders, who sometimes must resort to elements of strict justice, but at other times may also require the capacity to temper justice with mercy. Finally, Levine turns to the juridical setting, considering the possibility that an ideal form of justice might incorporate a meaningful and appropriate measure of mercy.