Monthly Archives for February 2010

Shortcomings of secular reasoning

Stanley Fish’s 2/22/10 Opinionator article, Are There Secular Reasons?, highlights an argument made by Steven Smith in “The Disenchantment of Secular Discourse,” that pure analytical reasoning, without reference to religion or philosophical principles, is impossible. Fish writes:

It is not, Smith tells us, that secular reason can’t do the job (of identifying ultimate meanings and values) we need religion to do; it’s worse; secular reason can’t do its own self-assigned job — of describing the world in ways that allow us to move forward in our projects — without importing, but not acknowledging, the very perspectives it pushes away in disdain.

While secular discourse, in the form of statistical analyses, controlled experiments and rational decision-trees, can yield banks of data that can then be subdivided and refined in more ways than we can count, it cannot tell us what that data means or what to do with it. No matter how much information you pile up and how sophisticated are the analytical operations you perform, you will never get one millimeter closer to the moment when you can move from the piled-up information to some lesson or imperative it points to; for it doesn’t point anywhere; it just sits there, inert and empty.

Once the world is no longer assumed to be informed by some presiding meaning or spirit (associated either with a theology or an undoubted philosophical first principle) and is instead thought of as being “composed of atomic particles randomly colliding and . . . sometimes evolving into more and more complicated systems and entities including ourselves” there is no way, says Smith, to look at it and answer normative questions, questions like “what are we supposed to do?” and “at the behest of who or what are we to do it?”

Instead, Smith argues, those who insist that public discourse must be based entirely on secularism move from A to B by “smuggling” in normative values in the guise of universal truths, like “freedom” and “equality,” which secularism itself should consider empty abstractions. These concepts have no value unless you begin with some form of ideological perspective.

It’s an interesting argument that feels intuitive. I’d love to be able to say I will read Smith’s book, but if you knew how many books I already have on my should-read list that I’ll probably never get to…

Appellate Division reverses decision and order that vacated Beth Din award

The New York Appellate Division, Second Department, reversed an order of the New York Supreme Court that vacated an arbitration award by the Beth Din of America.

The Supreme Court order vacated the award of the Beth Din which reinstated a tenured teacher at a salary greater than that agreed upon in the teacher’s contract. The court found, among other things, that the award ran counter to public policy. The Supreme Court decision can be accessed here.

The Appellate court reversed the decision finding that “. . .Supreme Court incorrectly granted that branch of HAFTR’s cross petition which was to vacate the arbitration award, since the petitioner demonstrated that he was a tenured teacher at HAFTR and, as such, had certain rights, including the right to have his employment terminated only for cause, barring emergent financial circumstances not at issue here…In response, HAFTR failed to rebut this showing by demonstrating the applicability of any of the statutorily enumerated grounds for vacatur of the award.”

The Appellate court also held that the $100,000 annual salary designated in the award was not irrational because “HAFTR concedes in its brief, the petitioner’s average annual compensation during his last seven years at HAFTR was greater than $100,000. It was, therefore, not irrational for the panel of arbitrators to set the petitioner’s future annual salary at $100,000.” As reported on January 21, 2009 in the Jewish Week, with overtime the teacher was earning $118,000 at the time he was let go, plus health insurance and a pension.

The Appellate Division decision can be found here.

Former Rep. Wexler on the Holocaust Insurance Accountability Act

The Holocaust Insurance Accountability Act of 2010, H.R. 4596, is a scaled down version of a bill proposed in the House in 2007, which I noted last week was not passed. The 2007 bill (H.R. 1746) would have created a federal Holocaust Insurance Registry and a separate federal cause of action for Holocaust insurance policy claims.

In contrast, the 2010 bill legitimizes claims based on state law and requires insurance companies to comply with state disclosure requirements.

The following is a video of former Congressman Robert Wexler’s impassioned defense of the 2007 bill:

Congressman Wexler, who resigned in January 2010, mentions the following numbers, which give a sense of the scope of the outstanding claims. A total of $450 million was distributed through the International Commission on Holocaust Era Insurance Claims (ICHEIC) process, which was in effect from 1998-2007. $306 million of that was paid to survivors. The amount owed by the insurance companies is estimated by opponents of the legislation to be $3 billion dollars, meaning a conservative estimate is that only 15% of the policies were paid. Other estimates have the value of the policies as high as $17 billion, meaning the ICHEIC distributions amounted to a mere 2% of the amounts owed to survivors.

As Avrohom and I discussed in the comments to the previous post, even if the insurance companies are compelled to disclose information about the outstanding policies, the remaining challenge is to actually identify and locate the survivors and/or their heirs.

Holocaust Insurance Accountability Act of 2010

In an Op-Ed for JTA in December 2009, U.S. Rep. Ileana Ros-Lehtinen (R-Fla.) wrote:

Although more than 60 years have passed since the world witnessed the atrocities committed by Hitler’s regime, many Holocaust-era compensation issues remain unresolved. One of these issues includes the continued failure of insurance companies to pay Holocaust survivors or families of victims for policies purchased before or during World War II. This is one of the enduring injustices of the Holocaust.

For more than 60 years, many European insurance companies have unfairly denied claims, arguing that Holocaust survivors and their families lack documentation — such as death certificates — needed to prove policy ownership. But such requirements are unfair and even disgraceful considering that the concentration camps in which many of the Holocaust victims perished did not issue death certificates, and that many of the assets and documents owned by the victims were confiscated by the Nazi regime.

In fact, in many cases, the only surviving records of such policies are in the vaults of the insurance companies, many of which shamefully refuse to disclose the names of Holocaust-era policyholders.

To address the problem of settling Nazi-era insurance claims, the International Commission on Holocaust Era Insurance Claims was established in 1998. Some European insurance companies agreed to participate in the ICHEIC process, but their participation was voluntary and lacked the necessary enforcement mechanisms. The ICHEIC process ended in 2007 after producing payments for only a small fraction of the value of Nazi-era insurance policies. Insurance companies were never forced to make adequate disclosure of policy ownership information, and potential claimants remain in the dark about whether they have a claim.

The failure of the insurance companies to settle Nazi-era insurance claims is particularly disturbing given that many Holocaust survivors in the United States live below the poverty line and lack adequate housing, food and medical care.

On February 4, 2010, Rep. Ros-Lehtinen introduced legislation in the House which clarifies that the ICHEIC, which was largely ineffective, succeeded in frustrating survivors’ attempts to collect insurance proceeds under laws of individual states:

In American Insurance Association, Inc., v. Garamendi, the United States Supreme Court held that under the supremacy clause of the Constitution of the United States, executive agreements and Federal Government policy calling for insurance claims against German and Austrian companies to be handled within ICHEIC preempted State laws authorizing State insurance commissioners to subpoena company records and require publication of the names of Holocaust era policy holders.

The proposed law would allow claims based on state law to go forward. It would also require insurance companies to comply with certain state laws regarding disclosure of policies in effect between January 30, 1933, and December 31, 1945. The bill would apply to lawsuits previously dismissed as preempted and would extend the statute of limitations for lawsuits to at least 10 years from the date the bill goes into law. See H.R. 4596, “Holocaust Insurance Accountability Act of 2010.”

In her Op-Ed for JTA, Rep. Ros-Lehtinen wrote that she had previously introduced a similar bill, but “unfortunately, the bill did not reach the House floor, in part because of the insurance industry’s fierce lobbying efforts against the measure. A lack of interest among key members of Congress also has pushed the rights of Holocaust survivors into the legislative abyss.”

The insurance industry’s deepest and sincerest belief in the sanctity of contracts is evident in its recent arguments that executive bonuses should be paid despite the reckless investments that brought the economy to its knees. One would almost expect to find insurance companies rushing to voluntarily honor survivors’ claims.

Rabbi Max Sutton on contract performance

Rabbi Max Sutton, Rosh Bet Din Aram Soba in Jerusalem, published an article, “Time is Money,” in the February 2010 issue of Community. Using cases that have come before the bet din, the article discusses the halachot of contract performance, the duty to inspect merchandise, and the timeliness of objections to incomplete performance.

Rabbi Sutton writes:

In the world of business, the element of time plays a crucial role. Generally, two parties engaged in a business deal specify the time period allowed for performance. Even when no definite time period is stipulated, an agreement can be terminated after a reasonable amount of time due to non-performance. What constitutes a reasonable amount of time depends on the circumstances and nature of the agreement. Time limitations also apply to buyers seeking to return merchandise after discovering a defect. The following cases and their verdicts display the ability of Torah Law to resolve complex time-related situations accurately and fairly.

Comment on Avrohom’s post, Zargary v. City of New York

This was initially a comment to Avrohom’s post, Prisoner’s “Free Exercise Clause” claim fails despite New York City’s failure to provide her with a rabbi at 3:30 am. It grew into its own post.

My initial take is that the court is conflating two issues — 1) whether a prisoner in general is entitled under the free exercise clause to consult with religious clergy, and 2) whether a prisoner has a specific right to object and/or consult with clergy when being directed to do something the prisoner believes is religiously prohibited.

The first is a general question of affirmative religious rights. The second is whether or under what specific circumstances someone’s free exercise rights may be impinged, and whether the prisoner then has the right to consult on an urgent and time-sensitive basis.

The court’s failure to make the distinction is evident in this passage:

Even if plaintiff had advanced an independent claim of municipal liability based on defendant’s failure to provide a rabbi, the claim would have failed on the merits. Defendant does not dispute that plaintiff had the right to consult with a religious advisor while incarcerated (see Def.’s Br. 2), and the Court agrees that such consultation is an important aspect of religious expression. See Griffin v. Coughlin, 743 F. Supp. 1006, 1027 (N.D.N.Y. 1990). Plaintiff cites no case, however, for the proposition that the Free Exercise Clause requires defendant to provide access to a religious advisor within a certain period of time or to delay prison administration while a religious advisor is obtained. The Court concludes that defendant’s alleged policy of providing religious advisors during business hours and in emergencies is “reasonably related to legitimate penological interests” under the standard articulated in Turner v. Safley, 482 U.S. 78, 89 (1987). The City’s failure to provide plaintiff with a rabbi at 3:30 a.m., or to suspend the intake process until a rabbi was available, was not a violation of her Free Exercise rights.

The Griffin case, which can be read here, concerned prisoners’ rights to have private meetings with clergy. Once you posit that prisoners do have the right, the question then becomes what should be considered reasonable under the circumstances. Likewise, Turner dealt with general prison rules on marriage and correspondence – also no apparent question of immediacy, but of general religious rights.

Following that logic, the court should have then addressed whether it was reasonable under the circumstances to allow the prisoner to speak to a rabbi. It should be relevant what she was arrested for and whether she was dangerous or uncooperative. It should be relevant whether she could have been held without being photographed for several hours. It may be reasonable under most circumstances to allow religious consultations only during business hours or during emergencies, but as a general matter, at 3:00 a.m. the corrections officers are not demanding that a prisoner do something he or she believes violates a religious prohibition. Pointing at precedent that approved of general rules on non-urgent issues does not address the question here.

Something tells me that the court sees head covering as no big deal anyway. If so, that’s not an appropriate call for the court to make. Would they say the same if a prisoner hadn’t eaten in three days and wanted to consult as to whether it was permissable to eat food that was not kosher?

Prisoner’s “Free Exercise Clause” claim fails despite New York City’s failure to provide her with a rabbi at 3:30 am.

The New York Law Journal yesterday reports a decision from the U.S. District Court for the Southern District of New York. A Jewish inmate in NYC sued the city of New York because a Department of Corrections officer forced her to remove her “religious headdress” (?) prior to taking an intake photo at a prison facility. Her underlying constitutional claim arose under the Free Exercise Clause of the Constitution under which the plaintiff asserted that the municipal custom or practice of removing a religious head covering before intake photographs were taken impinged upon her religious freedom and was not “reasonably related to legitimate penological interests.” After a trial, the Court granted judgment to the City, finding that legitimate penological interests were served by the DOC’s reasonable procedure for photographing detainees. A Department of Corrections official testified that pictures without headgear were necessary, among other reasons, to identify escapees. The decision after trial is here: http://ny.findacase.com/research/wfrmDocViewer.aspx/xq/fac.%5CFDCT%5CSNY%5C2009%5C20090420_0000389.SNY.htm/qx

The plaintiff then moved to amend the judgment or for a new trial, claiming “the Court provided an incomplete analysis of the Free Exercise Clause” in its Opinion by failing to “provide[] an analysis of [plaintiff's] right to confer with a religious advisor.” Apparently, when the plaintiff was being processed at the prison facility at 3:30 am she requested the presence of a rabbi. Prison officials were unable to locate a rabbi in the building at that time, removed the prisoner’s head covering and and continued to process. The court denied the motion for procedural reasons but also added that it would have been denied on the merits as well, because while the City “does not dispute that plaintiff had the right to consult with a religious advisor while incarcerated, and the Court agrees that such consultation is an important aspect of religious expression… Plaintiff cites no case, however, for the proposition that the Free Exercise Clause requires defendant to provide access to a religious advisor within a certain period of time or to delay prison administration while a religious advisor is obtained. The Court concludes that defendant’s alleged policy of providing religious advisors during business hours and in emergencies is “reasonably related to legitimate penological interests.” Neither decision reveals what the plaintiff was arrested for. For those who subscribe to the NYLJ, you can read the decision here:
http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=121061

Of interest 2/3/10

- Rabbi Ari Enkin summarizes Rabbi Y.H. Henkin’s views on family planning. Note that family planning is a controversial area of halacha, and Rabbi Henkin’s views are not universal. Note also that what is or isn’t appropriate is fact sensitive, and decisions should be made in consultation with rabbinic authority.

- A short essay by Alicia von Stamwitz appearing in the New York Times on January 25, 2010, underscores the importance of having clear directives on terminal care. The author, in the ER with her sick father, would have preferred to “stop the insane cycle of hospitalizations and heroic life-saving treatments,” but deferred to her father’s wishes to have everything possible done to keep him alive.

- The RCA revised their Halachic Health Care Proxy form last year. Rather than contain a laundry list of possible procedures, the form simply directs the appointed health care agent to consult with a specified rabbinic authority on end of life decisions. The RCA also published a two page guideline on halachic advance directives.