Category Archives: Judicial System

Beth Din of America Publishes New Journal

The Beth Din of America has published the first issue of its new journal, in collaboration with the Rabbi Norman Lamm Yadin Yadin Kollel at the Rabbi Isaac Elchanan Theological Seminary (RIETS) of Yeshiva University. The new Journal of the Beth Din of America contains articles on Jewish jurisprudence and beit din practice, with a particular emphasis on the policies and practices of the Beth Din of America. Each issue of the Journal includes anonymized versions of actual din torah (arbitration) decisions issued by the Beth Din of America.

The first issue of the Journal includes the following articles:

  • The Prenuptial Agreement: Recent Developments, by Rabbi Mordechai Willig
  • Jewish Law, Civil Procedure: A Comparative Study, by Rabbi Yona Reiss
  • The Prohibition Against Going to Secular Courts, by Rabbi Yaacov Feit
  • Understanding Rights in Context: Freedom of Contract or Freedom From Contract?, by Rabbi Michael J. Broyde and Steven S. Weiner
  • Recovering the Costs of Litigation in Beit Dinby Rabbi Shlomo Weissman

The issue also contains Beth Din decisions regarding defective merchandise and hasagas gevul (unfair business competition).

To read the Journal online, click here. For more information on the Journal click here.

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Filed under American Law, Halacha / Jewish Law, Judicial System, News

Diversity Jurisdiction

This week’s parsha, Shoftim, begins by mandating the appointment of judges for each sheivet (tribe) and in every city.(1) A study of the structure of the halachic judicial system reveals that, in some ways, it bears a strong resemblance to the structure of the American system established centuries later. This post will highlight one of the similarities: the establishment of special courts with jurisdiction over cases involving litigants from different geographical areas.

Diversity Jurisdiction in American Courts

The jurisdiction of federal courts is limited to that which is expressly provided by the Constitution and statutes enacted by Congress.(2) One type of jurisdiction conferred on federal courts is “diversity jurisdiction,” which allows a court to hear cases based on state law between citizens of different states.(3) The concept of “diversity jurisdiction” spans back to the founding of the nation. In the Judiciary Act of 1789, Continue reading

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Judicial Qualifications

Being a judge is not easy. They are often faced with tough decisions that affect the lives of the litigants who appear before them. It should be expected, then, that those who become judges must be sufficiently qualified. But what sort of qualifications should be required?

This week’s parsha, Devarim, mentions some of the qualities required for being a dayan––a Jewish judge. One of the primary criteria is that the individual be a chacham, a wise man.(1) It is not clear, however, whether this “wisdom” refers to actual legal knowledge or simply the ability to make wise determinations. In this post, we will take a look at whether judges in the American and Jewish judicial systems must have a formal legal education or some other background in the law. Continue reading

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Dissenting Opinions

Many legal systems have courts with multiple judges. Generally, procedural rules mandate that the decision of the majority of judges shall be the law. However, what differs among various courts is how and whether the opinions of dissenting judges are publicized.

For instance, the traditional practice in English common law courts was the delivery of opinions “seriatim”––meaning that each judge would separately state his opinion (usually orally). Although early American tribunals followed in the footsteps of the English courts, John Marshall, one of the early chief justices of the U.S. Supreme Court, instituted a new practice. Marshall convinced the other members of the court to reach a compromise in a private conference, and then issue an anonymous opinion, without recording the independent views of the justices. Unanimity remained fairly prevalent in the Supreme Court’s opinions until Harlan Fiske Stone became the chief justice in 1941. Since then the justices of the Supreme Court have more often asserted their individual opinions, whether they dissent or concur with the majority.

Advocates of the the issuing of opinions seriatim and unanimous opinions have debated the policies underlying each practice. Continue reading

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Filed under American Law, Halacha / Jewish Law, Judicial System