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CFP: 2012 Kathryn T. Preyer Scholars

March 29th, 2012

The ASLH has announced the application process for the 2012 Kathryn T. Preyer Scholars. About the award:
Named after the late Kathryn T. Preyer, a distinguished historian of the law of early America known for her generosity to young legal historians, the program of Kathryn T. Preyer Scholars is designed to help legal historians at the beginning of their careers. At the annual meeting of the Society two younger legal historians designated Kathryn T. Preyer Scholars will present what would normally be their first papers to the Society. (Whether there is a Kathryn T. Preyer Memorial Panel at the meeting, as there was this year, or whether the Preyer Scholars present their papers as part of other panel depends on the subject-matter of the winning papers and on what is on the rest of the program.) The generosity of Professor Preyer's friends and family has enabled the Society to offer a small honorarium to the Preyer Scholars and to reimburse, in some measure or entirely, their costs of attending the meeting. The competition for Preyer Scholars is organized by the Society's Kathryn T. Preyer Memorial Committee.
The application process for 2012:
Submissions are welcome on any topic in legal, institutional and/or constitutional history.  Early career scholars, including those pursuing graduate or law degrees, those who have completed their terminal degree within the previous year, and those independent scholars at a comparable state, are eligible to apply. Papers already submitted to the ASLH Program Committee--whether or not accepted for an existing panel--and papers never previously submitted are equally eligible.
Papers must not exceed 40 pages and must contain supporting documentation.  In past competitions, the Committee has given preference to draft articles and essays, though the Committee will still consider shorter conference papers. Submissions should include a complete curriculum vitae, contact information, and a complete draft of the paper to be presented. The draft may be longer than could be presented in the time available at the meeting (twenty minutes) and should contain supporting documentation, but one of the criteria for selection will be the suitability of the paper for reduction to a twenty-minute oral presentation. The deadline for submission is June 30, 2012. The Preyer Scholars will be named by August 1.
Kathryn T. Preyer Scholars will receive a $250 cash award and reimbursement of expenses up to $750 for travel, hotels, and meals. Each will present the paper that s/he submitted to the competition at the Society's annual meeting in St. Louis, MO on November 8-11, 2012.  The Society’s journal, Law and History Review, has published several past winners of the Preyer competition, though is under no obligation to do so.
Please send submissions as Microsoft Word attachments to the chair of the Preyer Committee, Gautham Rao.  He will forward them to the other committee members.
The other members of the committee are Sally Hadden (Western Michigan University
), Christopher W. Schmidt (Chicago-Kent College of Law
), Michael A. Schoeppner (California Institute of Technology
), and Karen Tani (University of California, Berkeley). For more information, including the names of the 2011 Preyer scholars, follow the link and scroll down. Read more about Kitty Preyer here.

Samuel Moyn on Religoius Freedom

March 29th, 2012

Samuel Moyn (Columbia University) has posted an interesting take on religious freedom and secular intolerance on site The Immanent Frame. From the article:
  • In the last issue of First Things, a self-described coalition of “Catholics and Evangelicals together” defends religious freedom. The coalition includes a number of notable Americans, like Charles Colson and George Weigel, with endorsements from the archbishops of Chicago, New York, and Philadelphia, along with many others. According to the statement, the situation is unexpectedly urgent. After the fall of the Soviet Union, “throughout the world, a new era of religious freedom seemed at hand.” But, now it is blatantly clear that the scourge of intolerance—especially secularist intolerance—persists.

New Issue of the Jewish Review of Books

March 29th, 2012

Some great articles and reviews in the new issue of the Jewish Review of Books including Paula Fredriksen on the annotated Jewish New Testament and Leon Wieseltier on the New American Haggadah.

Gross on Violating Divine Law: Emergency Measures in Jewish Law

March 25th, 2012

Oren Gross (University of Minnesota Law School) has posted Violating Divine Law: Emergency Measures in Jewish Law on SSRN. From the abstract:
  • Judaism is a thoroughly legal culture. Structured around the concept of mitzvot (commandments), Jewish law regulates both the public sphere of social and political interactions and the private sphere of human conduct. Jewish law is founded on a single source of legal authority, i.e., divine will as it is expressed in the Torah that was revealed to Moses at Sinai and transmitted down the generations. Yet, applying the Torah’s principles and rules to everyday life requires further decision-making in the processes of interpretation, application and administration of the law. Jewish law embraces the principle of human decision-making responsibility by recognizing the exclusive competence of halakhic authorities to determine the meaning of the Torah by way of interpretation and exegesis.While laws and regulations that are put in place by halakhic authorities without having a direct basis in the biblical text are binding they cannot contradict or overturn primary (divine) legislation. To the extent that they purport to do so, they would be “unconstitutional” and invalid.
  • Yet, the paper argues that this has not always been the case. The first argument is that dealing with such questions as could rules promulgated by the halakhic authorities go so far as to practically “overrule” the divinely ordained law of the Torah and could the sages permit or even command that which the Torah forbids, or prohibit that which under the Torah had been allowed, Jewish law has always given these questions a qualified affirmative answer despite the divine source of the Torah law. The second claim is that the legal basis for the sages’ ability to make emergency decisions and adopt emergency measures is not entirely clear. In fact, the paper argues that the ambiguity about the legal foundation of such radical authority or power is purposeful. While some halakhic authorities identify the source of their authority as present within the framework of the law, others seem to recognize that their actions had been lacking legal authority. Rather than invoking their widely-recognized broad interpretative powers and attempt to make the claim that their actions and decisions had been in accordance with the dictates of the Torah they accept, albeit tacitly, the need to act in contravention of the Torah.

CFP: ASLH-sponsored Panel @ Israeli Legal History Assn Annual Conference

March 25th, 2012

Proposals are invited from members of the American Society for Legal History interested in joining an ASLH-sponsored panel at the Israeli Legal History Association's annual conference to be held 15 October 2012 in Jerusalem. As part of its policy of international outreach, the ASLH has entered into an agreement with the Israeli Legal History Association by which each scholarly society will sponsor a panel to take part in the other society's annual meeting.  In 2012 the ILHA annual conference will meet on Monday October 15 at the Yad Ben Zvi Institute in Jerusalem.  The main theme of the conference this year is The Craft of Legal History: Archival Research, Oral History and Additional Sources.  The organizers elaborate on the conference theme as follows: (1) "This year we intend to focus on the variegated ways in which research in legal history is conducted and the challenges presented by different sources used by scholars in general and researchers of the history of local law in particular. Those presenting papers that do not directly address this theme, will be requested to devote part of their presentation to the sources they use in their research. (2) "We intend to devote a plenary panel to debate archival research and its challenges. (3) "We are also interested in proposals concerning the history of foreign legal systems from all periods and areas. We will also be happy to receive proposals addressing additional methodological and historiographical questions. We invite proposal from scholars from various areas such as Law, Humanities and Social Sciences. The Association seeks to include presentations by advanced graduate students." Participants on the ASLH panel will be selected with the following criteria in mind: appropriateness to the conference theme; historiographical/substantive originality; thematic unity for a single panel; and capacity to engage with an Israeli scholarly audience.  The conference language will be Hebrew; the ASLH panel will be conducted in English. Paper proposals submitted for the ASLH panel but not selected will be forwarded to the conference organizers for their consideration. Participants in the ASLH panel will be expected to seek funding support from their home institutions to meet the costs of conference attendance.  Some limited "top-up" support (maximum $5000 for the panel as a whole) will be available for those participants whose home institution will not meet their full expenses. Proposals should consist of (a) a 250 word synopsis of the proposed paper, and (b) a US$ estimate of the prospective participant's expenses accompanied by a reliable estimate of the amount of US$ funds available to the prospective participant to meet those expenses. Proposals should be sent by email attachment to ctomlins@law.uci.edu. Deadline for receipt of proposals is 30 April 2012.

APJ’s Symposium on Halakha and Philosophy of Law

March 20th, 2012

Per the APJ's announcement: The Association for the Philosophy of Judaism is pleased to invite all interested parties to its forthcoming online symposium on halakha (Jewish law) and the philosophy of law (21-28 March), which will take place on its new site http://www.theapj.com/blog. The symposium is entitled “Authority, Halakha, and the Official Vigilante,” and will center around a discussion of the problems of authority and law in relation to Mishna Sanhedrin 9:6, in particular the rule that zealots may attack the Jewish man who is having sexual relations with a Gentile woman. On March 20th materials will be posted on the new website which will contain some discussion of the issues by the symposium participants Sari Kisilevsky (CUNY), Ken Ehrenberg (SUNY), and Laliv Clenman (Leo Baeck). Of particular relevance will be the following texts: Mishna Sanhedrin 9:6, Babylonian Talmud Sanhedrin 81b-82b, and Palestinian Talmud Sanhedrin 27b.
Please contact info@theapj.com with any questions.

Call for Papers: Jewish Law, The Next Generation at Yale

March 20th, 2012

Jewish Law Association Call for Papers--Jewish Law: The Next Generation The Jewish Law Association is now accepting applications from graduate students, law students, and other emerging scholars, to participate on a plenary panel at the 17th International Conference of the JLA, which will be held at Yale Law School on July 30-August 2, 2012. The goal of the panel is to recognize and encourage the next generation of scholars and teachers of Jewish Law. The panel will include presentations by emerging scholars, including graduate students in law and other disciplines, who will outline their research agendas and career aspirations in Jewish Law and Jewish Legal Studies. In addition to presenting their research at a major conference, these emerging scholars will benefit from suggestions by senior scholars on the panel and comments from the audience. The conference schedule will also include opportunities for informal discussions with scholars and teachers of Jewish Law. Please submit a statement of interest, including a brief biography and research agenda, along with a current CV, to Larry Rabinovich, treasurer of the Association, lrabinovich@hblaw.com. The deadline for submissions is March 31, 2012. . Limited financial scholarships will be available for accepted applicants.

Traditional Belief Confronts Academic Critique

March 14th, 2012

Review of: Norman Solomon, Torah from Heaven: The Reconstruction of Faith (The Littman Library of Jewish Civilization,2012) 412 pages. By Dan Baras I, like many of the readers of this review, have long been waiting for an up to date, well-informed and scholarly book on the belief in ‘Torah from heaven’ particularly in light of accumulating contemporary critiques of traditional belief. Solomon, a retired pulpit rabbi and Jewish studies professor at the University of Oxford, begins and ends his book with his own personal experience, giving a personal touch that frames the academic content at the center of the book. This content consists of 26 (coincidence?) chapters divided into five parts. The first part traces the evolution of the rabbinic belief in ‘Torah from heaven’ culminating in the idea of a dictated text and an oral legal tradition emanating directly from God. The second part presents counter-traditions and objections to the rabbinic belief, new and old, which stem from clashes with contemporary moral intuitions, science and the various strands of textual biblical criticism. The third part briefly portrays the responses to biblical criticism of nearly twenty orthodox bible commentators, from the beginning of the Enlightenment through the first half of the 20th century, from the Vilna Gaon and Moses Mendelsohn, to Umberto Cassuto and Yehiel Weinberg. The fourth part is titled “New Foundations”, although it is not entirely clear how the line is drawn between the approaches discussed here and those discussed in part three. Its first chapter briefly reviews the opinions of some non-orthodox theologians such as Franz Rosenzweig, Abraham Joshua Heschel and Emanuel Levinas. R. Joseph Dov Soloveitchik receives a chapter of his own, and another chapter is dedicated to feminist critiques (why here and not with the attacks on traditional belief in the second part?). Finally, in the fifth part, especially in chapter 24, Solomon suggests, as opposed to orthodox beliefs surveyed thus far, that we understand ‘Torah from heaven’ as a myth of origin of the Jewish religion, rather than a descriptive historical fact. Myth, as opposed to history, can be a value expressing deep truth about human culture even without correspondence to actual occurrences. Solomon intends that his book appeal to both popular and academic readership (p. v), a task he rather successfully fulfills. His literary style is characterized by the art of brevity, his proclaimed strategy is to “describe the wood as a whole rather than the individual trees” (p. vi). Footnotes are concise and not burdened with endless bibliographic citations. For the interested reader, references throughout the book lead to sources for further reading. Each chapter and each part ends with a short conclusion, making the book conveniently easier to follow. Four of the five parts of the book focus on the long history of the debate, making the reader aware that contemporary discussions do not stand devoid of history . For lecturers interested in creating a course on the topic of this book, it undoubtedly serves as a useful starting point. The table of contents generally fits the subject matter, albeit with occasional variances. Yishayahu Leibowitz and Abraham Yitzhak Kook, for instance, both of whom confronted biblical criticism explicitly, are absent from Solomon’s discussion. Theologians will benefit from a plentitude of thought provoking critique and insight. It is for these reasons that I recommend the book, despite the flaws that will be pointed out in what follows. The main flaw of the book is a frequent inattentiveness to important details. The knowledgeable reader will get the sense that the book was released too early, and that careful revision would have been quite beneficial. The following are some examples from the third and fourth parts of the book: The book purports to encompass a tremendous area of scholarship, primarily from the fields of Jewish history and philosophy. No book is exhaustive; nevertheless, at times Solomon’s brevity is excessive. A section dedicated to Leo Baeck (p. 224) consists of only two paragraphs, the first of which is a short biography. Similarly, in a section dedicated to Benno Jacob and A.S. Yahuda (pp. 206-207), Solomon offers only a quote from the Encyclopedia Judaica for Benno Jacob and a short paragraph, including mostly biographical information and an unsubstantiated judgment of his contribution to the debate. Since the book is not comprehensive anyway, one wonders why the author decided to include figures he was not going to discuss in a serious way. Even in longer sections there are some noticeable omissions. A full chapter is devoted to Rabbi Joseph Dov Soloveitchik (pp. 237-247), even though, according to the author “Soloveitchik…never engages with historical criticism” (p. 243). Soloveitchik himself would probably agree: in his famous essay “The Lonely Man of Faith” he wrote, “I have never been seriously troubled by the problem of the Biblical doctrine of creation vis-à-vis the scientific story of evolution…Moreover, I have not even been troubled by the theories of Biblical criticism which contradict the very foundations upon which the sanctity and integrity of the Scriptures rest” (Soloveitchik, 1965: 8-9). But why has Solomon not engaged with “The Lonely Man of Faith” even in a footnote? And how can one discuss Soloveitchik in this context without any mention of existentialism and the role of religious experience as a basis for belief? (see, for example, Soloveitchik, 1979: 3-4 and footnote 3).  These components are essential to understanding “Halakhic Man,” which serves as a central source in Solomon’s analysis. In the 20th chapter, Solomon reviews, as he puts it, four books defending traditional belief. But the inclusion of Menachem Kellner’s ‘Must a Jew Believe Anything?’ (Kellner, 2006) seems inappropriate. Kellner posits that pre-Maimonidean Judaism was not defined by dogma and therefore he argues that people of varied, even false, beliefs should be included within the boundaries of Judaism. But the “who is a Jew?” debate is very different from the ‘Torah from heaven’ debate. Kellner’s readers will not find any mention of biblical criticism in his book, nor will they find any theology of the sort Solomon is after. Tamar Ross’s ‘Expanding the Palace of Torah’, on the other hand, explicitly addresses the issue of ‘Torah from heaven’ and is justly discussed. But in Solomon’s discussion of Ross’s theory of cumulative revelation, no mention is made of non-foundationalism, Wittgenstinian belief or post-modernism, concepts so essential to Ross’s thought (Ross, 2004: 194). Solomon’s complaint that “it would have been helpful had Ross been clearer on where she thinks the boundaries should be drawn”, suggests Solomon’s failure to discern Ross’s radical stance, as she rejects the possibility of boundaries in this context (Ross, 2004: 182). Finally I turn to Solomon’s proposed theory of, ‘Torah from heaven as myth of origin’. The subtitle of the book creates an expectation for a justification and account of religious commitment. ‘Torah from heaven’ is troublesome to religious Jews to the extent that their religious commitment relies on belief in its divine origin. A myth of origin, while maybe “vital to create a sense of identity” (p. 314), will not suffice as a basis for halakhic commitment. Disappointingly, the reader will find only the quick observation that “people follow laws…for…complex reasons…such as identification with a particular social group, habit (inertia), a sense of joy, a sense of guilt, or because the law conforms with their own attitudes and aspiration” (p. 323). While some may identify with the observation, this is far from being a “reconstruction of faith”. Despite these (serious) shortcomings, the book is interesting, and successful in giving a broad historical prospective as well as provoking thought. Works Cited: Kellner, M. M. (2006). Must a Jew believe Anything? Littman Library of Jewish Civilization. Ross, T. (2004). Expanding the Palace of Torah: Orthodoxy and Feminism. Brandeis University Press. Soloveitchik, J. B. (1965). The Lonely Man of Faith. Tradition, 5-67. Soloveitchik, J. B. (1979). Uvikashtem Misham (heb.). Hadarom, 47, 1-83. Dan Baras is a doctoral student in philosophy (metaethics and philosophy of religion) at Ben Gurion University. He holds an M.A in philosophy from the Hebrew University and serves as the coordinator for the CJL Israeli Fellows program.

Tamanaha on General Jurisprudence

March 14th, 2012

Brian Z. Tamanaha (Washington University in Saint Louis - School of Law) has posted What is 'General' Jurisprudence? A Critique of Universalistic Claims by Philosophical Concepts of Law (Transnational Legal Theory, Forthcoming) on SSRN. Here is the abstract:
    This essay compares two different types of general jurisprudence: one philosophical in orientation and the second with an empirical bent. These approaches are represented by two recent books: Scott Shapiro's Legality and William Twining's General Jurisprudence. I compare them along several axes, including their underlying theoretical assumptions, their concepts of law, the sources they draw upon, and their claims of general application. A deep tension exists between these two approaches: Shapiro claims to have identified the essential nature of law, which he grounds in state law, and he rejects sociological insights about the concept of law as irrelevant; Twining does not make essentialist claims, he encompasses various forms of law, and he incorporates sociological insights. According to the standards of the first type, the second type does not qualify as general jurisprudence because it does not involve the philosophical search for the essence of law. As this comparison will reveal, however, Shapiro’s concept of law is identical in core respects to sociological approaches to law, and suffers from the same limitations. I argue, furthermore, that philosophical concepts of law tend to be highly parochial (despite their universalistic claims), and have potentially harmful real world consequences.

Balkin on Critics of ‘Living Originalism’

March 6th, 2012

Jack M. Balkin (Yale University - Law School) has posted Nine Perspectives on Living Originalism (University of Illinois Law Review, Vol. 2012, No. 3, p. 101, 2012) on SSRN. Here is the abstract:
    This Article responds to the nine contributions to a symposium on Living Originalism (Harvard University Press 2011). It considers nine different aspects of the argument in the book: (1) why constitutions around the world contain vague and abstract language, and how a constitution’s choice of language connects to the purposes of a constitution; (2) the book’s theory of democratic legitimacy; (3) how the book’s argument applies to constitutional cultures outside the United States, and the relationship between original and implied meanings; (4) the differences between the book’s theory of constitutional interpretation and that of Ronald Dworkin; (5) whether the book’s account of legal principles is consistent with legal positivism; (6) the book’s account of the U.S. Constitution as both “fallen” and as “higher law;” (7) whether a “protestant” constitutional culture — in which citizens feel authorized to state what the Constitution means for themselves — benefits or harms democratic legitimacy; (8) the book’s account of the original meaning of “commerce” as “intercourse,” and Congress’s power to regulate interstate networks of transportation and communication; and (9) the book’s message for living constitutionalists and constitutional originalists.