This paper offers an examination and critique of the Supreme Court’s doctrine of qualified immuni... more 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...
This chapter focuses on fiduciary principles at work in classical Jewish law. Using modern (Weste... more 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.
This Article examines the relationship between the formalism of an area of law, and whether it pl... more 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.
From Jesus and Paul down to the present, critics have long argued that the Talmudic tradition con... more 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 offers an account of how American law changed from a system once dominated by tradit... more This article offers an account of how American law changed from a system once dominated by traditional doctrines of private law into a legal culture where questions of procedure, public law, and statutory interpretation uniquely predominate. Using contemporary Anglo-Commonwealth law as a mirror, I raise skepticism at the easy notion that classical common law doctrines are simply unfit for the modern administrative state. Instead, I offer a theory about the role of conceptual legal thought in maintaining the legal order. The article demonstrates how each system funnels its central questions towards the areas of law understood as conceptually sound. Thus, though realism successfully deconstructed private law, American conceptual analysis migrated to public, statutory, and procedural law — and in turn these areas have become increasingly significant. By contrast, conceptualized private law remains at the center of Anglo legal analysis while there is correspondingly less intellectual and doctrinal investment in matters of procedure and statutory interpretation. The payoff of this comparison is to show how the domain of private law correlates to the role it plays in maintaining the legal systems’ legitimacy, and how analysis gravitates towards areas seen to stand on strong conceptual foundations.
The nineteenth century was the age of legal science. Across the globe, numerous cultures began to... more The nineteenth century was the age of legal science. Across the globe, numerous cultures began to think of their law in terms of an interlocking system of internally coherent rules. While the details differ, these movements shared the belief that numerous legal propositions were held together by a small number of core legal concepts, and that correct decisions could be determined via formal methods of legal deduction and analysis. This mode of legal thought gave increased importance to legal concepts and analytic categories. Duncan Kennedy has termed this mode of legal analysis Classical Legal Thought.This restructuring of legal analysis brought about changes in the understanding of what the law is and how it should be studied. In its American variant, the ascendance of Classical Legal Thought is usually associated with Christopher C. Langdell's tenure as dean of Harvard's law school. Langdell created the modern law school by shifting legal training away from apprenticeship ...
These are heady times in America's law and religion conversation. On the campaign trail in 19... more These are heady times in America's law and religion conversation. On the campaign trail in 1999, then-candidate George W. Bush declared Jesus to be his favorite political philosopher. Since his election in 2001, legal commentators have criticized both President Bush and the Supreme Court for improperly basing their decisions on their sectarian Christian convictions. Though we pledge to be one nation under God, a recent characterization of the law and religion discourse sees America as two sub-nations divided by God. Moreover, debate concerning the intersection between law, politics and religion has moved from the law reviews to the New York Times Sunday Magazine, which has published over twenty feature-length articles on these issues since President Bush took office in 2001. Today, more than anytime in the past century, the ideas of an itinerant first-century preacher from Bethlehem are relevant to American law.
Villanova University Legal Working Paper Series, 2006
The ALI's Restatement (Third) of Restitution provides one of the most interesting expressions of ... more 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. This is, however, changing. Following developments in the Commonwealth and Europe, there is a push for the American common law to recognize the field of restitution. Leading this effort is the ALI, and the emerging drafts of the Restatement (Third) of Restitution and Unjust Enrichment. 7 The Restatement's central goal is to RESTITUTION (Cambridge Press, 2004); Jacques Etienne du Plessis,
In the past generation, restitution law has emerged as global phenomenon. From its Oxbridge home ... more 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 theoryladen 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. I. A Brief History of Restitution All over the world, and especially in commonwealth countries, the law of restitution has virtually taken over the realm of private law theorizing. While the starting date of any movement is inevitably a dicey question, the publication of Peter Birks' An Introduction to the Law of Restitution in 1985 has initiated a steady stream, perhaps even a geometric progression, in the growth of restitution law and scholarship. From its Oxbridge home, via the influence and prestige of the BCL degree, restitution has migrated to Canada, Australia, New Zealand, Israel and the rest of the Commonwealth. Ongoing Europeanization projects have also brought the common law of restitution into contact with the Romanist concept of unjust or unjustified enrichment and created a truly Draft, March 26, 2007 Saiman, Restitution in America 2 international movement of restitution scholarship. 1 The past twenty-five years have witnessed a global renaissance of restitution reflected in hundreds, perhaps thousands of books and articles, scores of conferences and even a Restitution Law Review all dedicated to exploring this growing area of the law. 2 The United States remains a notable holdout to this global movement. Since the publication of Birks' watershed volume, I am aware of only one book published on the American law of restitution-a book written by an Israeli law professor and published by an English press (Cambridge), and which contains far more Commonwealth and
This paper offers an examination and critique of the Supreme Court’s doctrine of qualified immuni... more 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...
This chapter focuses on fiduciary principles at work in classical Jewish law. Using modern (Weste... more 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.
This Article examines the relationship between the formalism of an area of law, and whether it pl... more 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.
From Jesus and Paul down to the present, critics have long argued that the Talmudic tradition con... more 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 offers an account of how American law changed from a system once dominated by tradit... more This article offers an account of how American law changed from a system once dominated by traditional doctrines of private law into a legal culture where questions of procedure, public law, and statutory interpretation uniquely predominate. Using contemporary Anglo-Commonwealth law as a mirror, I raise skepticism at the easy notion that classical common law doctrines are simply unfit for the modern administrative state. Instead, I offer a theory about the role of conceptual legal thought in maintaining the legal order. The article demonstrates how each system funnels its central questions towards the areas of law understood as conceptually sound. Thus, though realism successfully deconstructed private law, American conceptual analysis migrated to public, statutory, and procedural law — and in turn these areas have become increasingly significant. By contrast, conceptualized private law remains at the center of Anglo legal analysis while there is correspondingly less intellectual and doctrinal investment in matters of procedure and statutory interpretation. The payoff of this comparison is to show how the domain of private law correlates to the role it plays in maintaining the legal systems’ legitimacy, and how analysis gravitates towards areas seen to stand on strong conceptual foundations.
The nineteenth century was the age of legal science. Across the globe, numerous cultures began to... more The nineteenth century was the age of legal science. Across the globe, numerous cultures began to think of their law in terms of an interlocking system of internally coherent rules. While the details differ, these movements shared the belief that numerous legal propositions were held together by a small number of core legal concepts, and that correct decisions could be determined via formal methods of legal deduction and analysis. This mode of legal thought gave increased importance to legal concepts and analytic categories. Duncan Kennedy has termed this mode of legal analysis Classical Legal Thought.This restructuring of legal analysis brought about changes in the understanding of what the law is and how it should be studied. In its American variant, the ascendance of Classical Legal Thought is usually associated with Christopher C. Langdell's tenure as dean of Harvard's law school. Langdell created the modern law school by shifting legal training away from apprenticeship ...
These are heady times in America's law and religion conversation. On the campaign trail in 19... more These are heady times in America's law and religion conversation. On the campaign trail in 1999, then-candidate George W. Bush declared Jesus to be his favorite political philosopher. Since his election in 2001, legal commentators have criticized both President Bush and the Supreme Court for improperly basing their decisions on their sectarian Christian convictions. Though we pledge to be one nation under God, a recent characterization of the law and religion discourse sees America as two sub-nations divided by God. Moreover, debate concerning the intersection between law, politics and religion has moved from the law reviews to the New York Times Sunday Magazine, which has published over twenty feature-length articles on these issues since President Bush took office in 2001. Today, more than anytime in the past century, the ideas of an itinerant first-century preacher from Bethlehem are relevant to American law.
Villanova University Legal Working Paper Series, 2006
The ALI's Restatement (Third) of Restitution provides one of the most interesting expressions of ... more 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. This is, however, changing. Following developments in the Commonwealth and Europe, there is a push for the American common law to recognize the field of restitution. Leading this effort is the ALI, and the emerging drafts of the Restatement (Third) of Restitution and Unjust Enrichment. 7 The Restatement's central goal is to RESTITUTION (Cambridge Press, 2004); Jacques Etienne du Plessis,
In the past generation, restitution law has emerged as global phenomenon. From its Oxbridge home ... more 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 theoryladen 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. I. A Brief History of Restitution All over the world, and especially in commonwealth countries, the law of restitution has virtually taken over the realm of private law theorizing. While the starting date of any movement is inevitably a dicey question, the publication of Peter Birks' An Introduction to the Law of Restitution in 1985 has initiated a steady stream, perhaps even a geometric progression, in the growth of restitution law and scholarship. From its Oxbridge home, via the influence and prestige of the BCL degree, restitution has migrated to Canada, Australia, New Zealand, Israel and the rest of the Commonwealth. Ongoing Europeanization projects have also brought the common law of restitution into contact with the Romanist concept of unjust or unjustified enrichment and created a truly Draft, March 26, 2007 Saiman, Restitution in America 2 international movement of restitution scholarship. 1 The past twenty-five years have witnessed a global renaissance of restitution reflected in hundreds, perhaps thousands of books and articles, scores of conferences and even a Restitution Law Review all dedicated to exploring this growing area of the law. 2 The United States remains a notable holdout to this global movement. Since the publication of Birks' watershed volume, I am aware of only one book published on the American law of restitution-a book written by an Israeli law professor and published by an English press (Cambridge), and which contains far more Commonwealth and
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