Topics in Comparison of American and Talmudic Law: Substantive Differences
PURPOSE AND SCOPE:
This comparative course is designed to:
1. Introduce students to the concepts, methods and contemporary issues in Comparative
Law.
2. 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 legal
topics within the Jewish legal system with the American one, students will come to understand
the societal and fairness concerns that go into fashioning any rule of law, and to better analyze –
on an ideological plane –what the law should be.
This course is a follow-up to the foundational course Comparison of American and Talmudic
Law, although the foundational course is not a prerequisite. In the foundational course, we
looked 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.
This course will focus only 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 email 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.
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There will be one final test at the end of the semester, 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.
There will also be one final paper, approximately 10 pages, due at the end of the semester, to
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 to come up with one on their own, that
discusses a substantive topic of law in depth, and compares the treatment of the legal issue in
both American and Talmudic law. Students will also have to present on their topic towards the
end of the semester. Choice of topic should be determined in consultation with the instructor.
SYLLABUS:
1. Weeks 1-2: Introduction, and the Interplay between the Rules of Evidence and Judge vs.
Jury Question
What types of evidence are allowed in Talmudic law? What types of evidence are allowed for the
jury to hear in American law, and what types of evidence are excluded? Should a judge be
activist in American law or Talmudic law? What is the justification for the jury system in
American law, and why does Talmudic law reject such a system? How does the faith in the
decision-maker affect the rules of evidence, and the role of the lawyer?
2. Week 3: Ownership and the Right to Privacy:
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?
Bava Meziah 21b-23a; Tosafot, Bava Meziah 26a s.v. v'nezel
Moses Maimonides, Mishnah Torah, Theft and Abandonment 14:3.
Shulhan Arukh, Hoshen Mishpat 260:9-10 and 262:3,7
Pierson v. Post
Edmonds v. Ronella, 73 Misc.2d 598, 342 N.Y.S.2d 408 (1973)
Manufacturers Safe Deposit Co. v. Cohen, 193 Misc. 900, 85 N.Y.S.2d 650 (N.Y.
Sup., 1948)
Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., 114 So. 2d 357
(1959)
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)
Alina Kofsky, Comparative Analysis of Women's Property Rights in Jewish Law
and Anglo-American Law, 6 J. L. & Religion 317 (1988)
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3. Civil Rights Unit
a. Week Three: Background to 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?
The Bill of Rights
Barron v Baltimore, 32 U.S. 243, 250
Duncan v. Louisiana, 391 U.S. 145 (1968),
Bd. of Education v Earls, 536 U.S. 822 (2002),
University of California v Bakke, 438 U.S. 265 (1978)
Grutter v Bollinger, 539 U.S. 306 (2003)
Deborah C. Malamud, The Jew Taboo: Jewish Difference and the Affirmative
Action Debate. 59 Ohio St.L. J. 915 (1998)
Moshe A. Bleich & Daniel Pollack, Search and Seizure in Schools: A Comparison
of Historical Jewish Legal Sources and Contemporary United States Law, 7 Ind.
Int'l & Comp. L.Rev. 379 (1997)
b. Week Four: Abortion
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?
Exodus 21:22-23; Rashi there
Mishna Oholos 7:6
Talmud Sanhedrin 72B
Maimonides, Mishneh Torah, Laws of Murder 1:9
Shulchan Aruch, Choshen Mishpat, 423:1
Igros Moshe, Choshen Mishpat II: 69B.
Ashkenazi, Rabbi Yehuda, Be'er Hetiv, Choshen Mishpat 425:2
Roe v. Wade, 410 U.S. 113
Planned Parenthood v. Casey, 505 U.S. 833 (1992)
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 (2006-2007).
c. Week Five: The Right to Die
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
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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?
I Samuel 31:4
II Samuel 17:23
Avoda Zara 17b-18a
Maimonides, Rotzeah, 2.2-3
Semachot, chapter 2 - faqs.org
Igros Moshe, Choshen Mishpat II, Volume 7, siman 73-4, p.311-315.
Auerbach, Rav Shlomo Zalman, "Treatment of the Dying," Halacha U'Refuah,
vol. 2, p. 131
Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990),
People v. Kevorkian, 1993 WL 603212 (Mich.Cir.Ct.,1993.)
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)
Snead, O. Carter, Dynamic Complementarity: Terri's Law and Separation of
Powers Principles in the End-of-Life Context, 57 Fla. L. Rev. 53 (2005)
Ehrlich, Joseph B., Schiavo: Cold Justice - Did the Courts Pursue, in View of the
High Court's Decision in Troxell v. Granville, the Correct Conclusion to the
Schiavo Case, 7 J.L. Soc’y 1 (2005-2006).
d. Week Six: Homosexuality
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?
Leviticus 18:3,18:22, 20:13
Genesis 9:22 and Rashi there
Sotah 13b
Kiddushin 82a
Sifra Aharei Mot 8:8–9
Maimonides, Mishneh Torah, Issurei Bi'ah 21:8–9, 22:2
Rav Moshe Feinstein, in Iggrot Moshe, Orach Chaim, Part 4, Responsa 115
Lawrence v. Texas, 539 U. S. 558 (2003)
Hernandez v. Robles, 7 NY3d at 356
Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003),
Chaim Rappaport, “The Prohibition of Homosexual Practices” Judaism and
Homosexuality, p. 1-67
Lamm, Rabbi Norman. Judaism and the Modern Attitude to Homosexuality.
Encyclopedia Judaica Year Book 1974, pp. 194-205.
Tribe, Laurence H., Lawrence v. Texas: The Fundamental Right That Dare Not
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Speak Its Name, 4 Dukeminier Awards: Best Sexual Orientation L. Rev. 145
(2006).
4. Criminal Law Unit
a. Week Seven: Elements to a Criminal Action
What are the requirements to be criminally liable in American Law? What are the elements of a
crime in Jewish law?
The Queen v. Dudley and Stephens, Queen’s Bench Division 14 Q.B.D. 273
(1884)
Stephenson v. State, 205 Ind. 141, 179 NE 633 (Supreme Court of Indiana, 1932)
Maccoth 16a; Sanhedrin 42a; 74a; 81a
Maimonides, Laws of Sanhedrin, chapter 12
Murder by Gruma: Causation in Homocide Case Under Jewish Law, 80 B.U.L.
Rev. 1017 (2000).
b. Week Eight: Acts and Omissions
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?
Leviticus 19:15-16
B. Sanhedrin 73a; 74a
B. Bava Mezia 62a
Maimonides, Torts, "Murder and Preservation of Life" 1:14, 16
Responsa Radbaz III, 1053 [628]
Pope v. State 284 Md. 309, 396 A.2d 1054 (Maryland Court of Appeals, 1979)
Jones v. United States, 308 F.2d 307 (D.C. Cir. 1962)
Regina v. Stone and Dobinson (1977) QB 354
Besser & Kaplan, The Good Samaritan: Jewish and American Legal Perspectives,
10 J. L. & Religion 193 (1993-1994)
c. Week Nine: Defenses
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?
Exodus 22:1-2
Numbers Chapter 25
Deuteronomy 19:6, Haamek Davar there
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Sanhedrin 72a, 82b
Moed Kattan 17a, the Rashi there.
Eiruvin 41a
Berachot 32a
Shabbat 153a
Talmud Yerushalmi Sanhedrin 8:8
People v. Unger, 66 Ill. 2d 333, 362 NE2d 319 (Ill. Sup. Ct. 1977)
H.C. 5100/94, Pub. Comm. Against Torture in Isr. v. Gov’t of Israel, 53(4) PD
817
People v. Goetz, 68 N.Y.2d 96 (N.Y. 1986),
Marilyn Finkleman, Self-Defense and Defense of Others in Jewish Law: The
Rodef Defense. 33 Wayne L. Rev. 1257 (1987)
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 ResidenceIntruder: A Comparison of the Jewish Law and the United States Common Law,
63 Temp. L. Rev. 31 (1990)
d. Week Ten: Capital 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?
Exodus 17:4, 8:22; Numbers 14:10
Leviticus 20:14, 21:9
Mishna Makkoth 7a
Mishna, Sanhedrin 45a; 52a; 52b
Pesachim (75a) and Ketubot (37a).
Maimonides, Mishneh Torah, Book of Judges, Sanhedrin, chapter XII
Honorable Menachem Elon, in State of Israel v. Tamir, 37(iii) P.D. 201 (1983).
Francis v Resweber, 329 U.S. 459 (1947),
Ingraham v Wright, 525 F.2d 909 (1977)
Furman v Georgia, 408 U.S. 238 (1972)
Hudson v McMillan, 503 U.S. 1 (1992),
Roper v Simmons, 543 U.S. 551 (2005)
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)
Bruce S. Ledewitz & Scott Staples, Reflections on the Talmudic and American
Death Penalty, 6 U. Fla. J. L. & PUB. Pol'y 33 (1993)
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. 1037 (1998)
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5. Week Eleven: Torts
What is negligence in Jewish law? What is negligence in American law? When are you
responsible for your negligent behavior in Jewish law or American law? What intentional torts
are recoverable under Jewish or American law? What is the rule of “strict liability” in Jewish
and American Law?
Exodus 21:29-35
Mishna Baba Kama 1:1; 2:6
Baba Kama 27b, 55b, 98b, 100a, 117b
Garratt v. Dailey, 46 Wash 2d 197, 279 P.2d 1091 (Wash. 1955)
United States v. Carroll Towing Co. 159 F.2d 169 (2d. Cir. 1947)
Moore v. Regents of the University of California (51 Cal. 3d 120; 271 Cal. Rptr.
146; 793 P.2d 479.)
Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (N.Y. 1928),
Ind. Harbor Belt R.R. Co. v. Am. Cyanamid Co., 662 F. Supp. 635, 638 (N.D. Ill.
1987)
Foster v. Preston Mill Co., 268 P.2d 645, 647 (Wash. 1954).]
Golden vs Amory S. Ct. Mass. [1952]
Sandy v. Bushey, 124 Me. 320, 128 A. 513 (Me.1925)
Elie Mischel, Thou Shalt Not Go about as a Talebearer among Thy People:
Jewish Law and the Private Facts Tort, 24 Cardozo Arts & Ent. L.J. 811 (20062007)
Christine Hart, Y.G. v. Jewish Hospital of St. Louis: Breathing Life into the
Disclosure of Private Facts Tort, 35 St. Louis U. L.J. 931 (1990-1991)
6. Week Twelve: Contracts
What is a contract in Jewish law and American law? What is required in order to be bound by
the contract in Jewish law and American law? What conditions can be put into a contract
without nullifying the entire contract under Jewish law and American law?
Bava Batra 47b-48a, 78a, 95a,168a
Bava Kama 116a
Bava Metzia Chapter 4, 50b, 66a-66b, 73b-74a, 104b, 109a
Gittin 55b, 58a-58b
Kiddushin 42b
Nedarim 27a-27b
Sanhedrin 24b
Johnson v. Mobil Oil Corp. 415 F.Supp. 264, 268 (E.D.Mich.1976)
Weaver v. American Oil Co., 276 N.E.2d 144 (Ind.S.Ct.1971)
Williams v. Walker-Thomas Furniture, 350 F.2d 445, 449 (D.C. Cir.1965)
Murray, John E. Jr. 1969. Unconscionability: Unconscionability. University of
Pittsburgh Law Review 31: 1.
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Speidel, Richard E. 1969. Unconscionability, Assent and Consumer Protection.
University of Pittsburgh Law Review 31: 359.
Sullivan. The Economic Duress Doctrine - A U.S. Perspective.
7. Week Thirteen: 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?
Deuteronomy 24:1
Gittin 33a (with Tosafot), 73a
Ktubot 3a, Rashi there, Tosafot
Bava Batra 48b
Yevamot 110a, Rashi there
Talmud Yerushalmi Gittin 4:2
Responsa of the Rashba I:1206
Darkei Moshe, Even Haezer 7:13
Maimonides, Mishne Torah, Hilchot Ishut, 12th chapter
Mishna Ktuvot 5:8-9, 7:6
Gemara Ktuvot, 47b-48a, 58b, 61a,
Domestic Relations Law §170; 236B
Chaim Malinowitz, The 1992 New York Get Law 27 J. Halacha & Contemporary
Society 5-26 (1994)
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)
Stone, Suzanne Last. The Intervention of American Law in Jewish Divorce: A
Pluralist Analysis, 34 Isr. L. Rev. 170 (2000).
8. Week Fourteen: Presentations of Paper Topics
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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.
The paper must be annotated and 10-15 pages in length.
This paper is due April 27, 2010. Students will present on their topics on May 4, 2010.
1. Exigent Circumstances in Jewish Law v. American Law: Et La’asot La’Hashem Hefiro
Toratecha
2. The Premise of Equality: Women v. Men, Slaves v. Owners
3. Bankruptcy Law: Compare Jewish Law perspective of the propriety of discharging
personal debts with the American system.
4. Tort Law: Comparing between American Law and Jewish Law
a. The intentional tort of assault/battery
b. Strict liability
5. Trespass in American Law and Jewish Law
6. Adverse possession in American law and Jewish law
7. Criminal Law: Comparing rape between American Law and Jewish law
8. Commercial Law: Economic Competition in Jewish Law and American Law
9. Corporate Law: To what extent is a corporation an independent entity in Jewish and
American Law?
10. Employment Law: What are unconscionable terms of employment 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
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