Two Lawyers, Three Opinions

On the Jewishness of Law, and Vice Versa

By Jay Michaelson

Published November 03, 2006, issue of November 03, 2006.
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Lawyers: Are they good for the Jews?

It doesn’t take a statistician to observe that there are a lot of Jews in the legal profession, and even more in the legal academy. But why are there so many Jews in the American legal world, and what significance, if any, do the numbers have?

To address these questions, and many others, more than 150 scholars, lawyers and observers gathered last week at Benjamin N. Cardozo School of Law for a conference on “Jews and the Legal Profession.” Presenters ranged from legal celebrities (Alan Dershowitz, Hebrew University’s Ruth Gavison and others) to younger scholars, like myself. And topics ran the gamut, from whether the separation of church and state is “good for the Jews” to the legal theories of Satmar Hasidim.

Sanford Levinson, a noted constitutional theorist who teaches at The University of Texas School of Law, put the central question this way: “Sandy Koufax was a legendary Jewish baseball player because he didn’t pitch the World Series on Yom Kippur — not because he ‘pitched like a Jew.’ But we do ask what’s Jewish about Jewish lawyers.”

Suzanne Last Stone, professor at the Cardozo School of Law and co-host of the conference, with University of Wisconsin Law School professor Marc Galanter, said that there is something distinctive to Jewish law and lawyers — what she called “an odd intellectual grammar, that can be traced to deep structures in rabbinic thought, that has to do with holding to ideas that are somehow dialectically linked, and you keep them in tension with each other. You never resolve the contradiction — you just keep using them to travel through time.”

In other words, I joked, Jews like to argue.

Curiously, though, most of this Jewish legal sensibility is expressed by Jews who have very little traditional religious background. As Galanter observed, almost none of today’s Jewish constitutional theorists — who make up not only a disproportionate share but also an overwhelming majority of the constitutional law professors at Harvard and Yale — had a religious education. Indeed, as Yale law professor Robert Post noted in his presentation, the real religious division today is between not Christians and Jews but religionists and secularists. And Jews — at least the elite, educated Jews who dominate the legal academy — are overwhelmingly on the side of the secularists.

David Hollinger, chair of the history department at the University of California, Berkeley, said in his presentation that this was no accident. “In the 1950s and 1960s, many people thought that the separation of church and state was a Jewish conspiracy,” he said. “Well, it was — and a good thing, too.” Joking that “Jewish conspiracies are not always bad,” Hollinger argued that the Jewish contribution to American legal thought is traceable less to rabbinic ideals than to the notion of secular modernity itself. Arguing for a “materialist account of Jewish history,” Hollander said that “Jews were especially well prepared for capitalist modernity,” especially its professional classes.

Still, it is curious how law itself is sometimes regarded as “Jewish.” Several presenters, including Galanter and myself, observed how many of our contemporary stereotypes about lawyers — that they are devious, legalistic, greedy and parasitic, for example — are longtime stereotypes about Jews. What’s more, these stereotypes do not attach themselves to other Jewish-heavy professions, such as medicine, and this suggests there’s something about the law itself that is seen to be “Jewish.”

In my own work, that something is legalism. The rants of today’s critics of the “litigation explosion” — which, Galanter’s work shows, never really happened — are the same complaints lodged by the apostle Paul against the Jews 2,000 years ago: too much letter, not enough spirit; too much body, not enough spirit; too much “hair-splitting” and not enough “common sense.” Perhaps what we are really talking about when we talk about the law is the soul.

Apart from the possible Jewishness of law and lawyering, there is also the more prosaic question of how law affects the Jews. One of the most heated moments during the three-day conference came in an exchange between Dershowitz — notorious in the Jewish community for defending not only O.J. Simpson but also the right of neo-Nazis to march in Skokie, Ill. — and Nathan Lewin, who has litigated countless cases on behalf of Jews wishing to light menorahs on public property, which in civil libertarian circles is seen as problematic for the separation of church and state Lewin took Dershowitz, the American Jewish Congress and most of the American Jewish establishment to task for defending the constitution more than they defended “their own people.” Dershowitz, in turn, attacked Lewin for short-sightedness. “Having more religion in the public square may seem ‘good for the Jews’ in the short term,” he said, “but in the long term, it’s extremely dangerous.” Dershowitz, who in recent years has been an outspoken defender of Israel, also surprised many in the audience when he said, “I don’t want to be a Jewish lawyer — I want to be a human rights lawyer.” But, Dershowitz said, the mistreatment that Israel has received in the media demanded his efforts to rectify the injustice.

For many in the younger generation of academics, myself included, this whole exchange, joined by Irwin Cotler, former minister of justice and attorney general of Canada, had an air of parochialism — “Borscht Belt,” one of my colleagues called it. Another pointed out that, in the whole harangue over Israel in the media, none of the speakers could even come to say the word “Palestinian.” While Dershowitz and Lewin dueled over what’s good for the Jews, some of us asked whether ethnocentrism, in the year 2006, is good for anyone.

This, perhaps, was an important part of the story. Dershowitz, Lewin and Cotler are all part of the generation, born in the years surrounding World War II, that “made good” as the children of immigrants or of Holocaust survivors. Theirs is the generation that filled the leading law faculties, helped create modern doctrines of secularism, and defended (or created) the separation of church and state out of both lofty ideals of liberalism and admittedly parochial concerns. As Post put it, “Postwar Jews were confident enough to litigate to protect their interests, but insecure enough to feel they had to litigate to protect their interests.”

Today, we Jewish legal thinkers are different. Less haunted by antisemitism, and privileged never to have known the exclusiveness and prejudice that once greeted every young Jewish lawyer, we see Jewishness in multicultural terms, as part of a diverse range of particularist voices that, together, create not a secular-liberal melting pot but the mosaic of multiethnic America. Hence, Stone’s pioneering work on the varying ways in which Jewish law is used as an identity marker in law schools, universities and other communities, and a fascinating account by Nomi Stolzenberg, professor at the University of California law school, of the way in which very traditional Jews — the litigious Satmar Hasidim — find within Jewish law itself a need for secular legal authority.

If legal academics are less interested in traditional questions of secular liberalism, it seems that the Jewish community is shifting its priority, as well. Marc Stern, legal counsel for the American Jewish Congress, bewailed the fact that the Jewish community has abandoned the fight for separation of church and state. “The Golden Rule in the Jewish community is that whoever has the gold, rules,” he said. “And today, there is little interest in issues of church and state.” Given the ascendancy of the Christian right, Stern predicted a “battle royale” over religion in public life, for which the Jewish community is completely unprepared.

Indeed, as the secular institutions of American life have been eroded over the past decade, it’s ironic that so many Jews have turned a blind eye, more interested in the Bush administration’s coddling of Israel’s right wing than in its Christianization of America. Perhaps Stern is right that we’ve grown complacent — or perhaps Lewin is right that we have more in common with religious Christians than with secularizers such as the AJCongress. Perhaps all of them are right — or none. One thing is for certain: With all this arguing, it was a very Jewish conference.

Jay Michaelson’s article “In Praise of the Pound of Flesh: Legalism, Multiculturalism, and the Problem of the Soul” was published recently in The Journal of Law in Society. He is at work on a book titled “Lawyers, Jews, and the Secret History of the Soul.”






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