Category Archives for General Interest

Appellate Court Affirms Decision Allowing Disinterment

In April 2010, I blogged on a case  in which a Supreme Court judge in Queens County permitted the non-Jewish spouse of a deceased Jewish man to exhume his body from a Jewish cemetery for reburial in what the judge termed a “non-denominational” cemetery, St. Elizabeth. The decedent was buried in the family plot next to his father. His mother and sister opposed the exhumation, claiming he wanted to be buried in accordance with Jewish Law.

On March 29, 2011 the Appellate Divsion, Second Department affirmed the decision, holding that:

 In the absence of consent by, among others, the parents of the deceased, a court may grant permission to disinter upon a showing of good and substantial reasons . . . Here, the testimony presented at the hearing supports the Supreme Court’s conclusion that the decedent’s paramount concern was that he be buried alongside the petitioner, which was not possible in the Mount Carmel Cemetery due to both the petitioner’s religious affiliation and the lack of available space. Under these circumstances, the Supreme Court properly determined that the petitioner demonstrated good and substantial reasons to disinter the remains of the decedent. (Emphasis added).

Delegating credit matters to employees may obligate business owners

My co-blogger, Avrohom Gefen, recently won an interesting case, Felix Storch Inc. vs. Martinucci Desserts USA Inc., that was published yesterday in the New York Law Journal.  The case was decided on January 31, 2011.

The reported facts are as follows.  Plaintiff, Felix Storch, sold commercial refrigerator units to Martinucci Desserts on credit.  Martinucci went out of business without having paid for the units.  The issue at trial was whether there was a personal guarantee by Mario Sclafani, Martinucci’s owner, to pay for the units in the event that Martinucci was unable to pay.

The signed credit application contained the following phrase: “The undersigned further agrees to personally guarantee any sum or sums of money which purchaser now owes or shall owe at any time.”  However, Sclafani claimed that although he knew the units were purchased on credit, he had never seen the application and that the signature on the application was not his.

In rejecting defendant’s argument, the Court wrote:

Sclafani’s defense was that the signature was not his. He stated that he did not handle any credit matters. Instead, he referred all credit matters to “the girls in the office.” Yet, he knew he received the Plaintiff’s units on credit. Defendant cannot escape his obligations by such a self-serving scheme whereby he denies his obligations while admitting he left it to “his girls” to do what was necessary. And, in this case, there is no question his staff signed the credit application, including the guarantee, on his behalf and returned it to the Plaintiff. Business owners who relinquish such unfettered authority to manage and complete their credit applications must assume the liability for what is completed on their behalf. Plaintiff had every expectation to rely upon the application received by telefax from Defendant’s office. Although the signatures are not an exact match (the Court does not profess to be a handwriting expert), it is clear that the affixed signature so closely resembled that of the Defendant that it was, at a minimum, signed on his behalf by, according to his testimony, the “girls in the office.” Defendant’s self-serving denial was insufficient to persuade this Court otherwise. (Emphasis added.)

The full text of the decision can be read here.

What is the Torah’s Economy? (Election Day Post)

Today’s election is widely seen as a referendum on the Democrat controlled Congress and first two years of Obama’s presidency, and specifically, the Democrats’ handling of the economy and the legislative agenda they pursued.

The theoretical question for this blog today, and a theme I hope to return to in the future:  What is the Torah’s ideal economy?  What kind of taxation is fair from the Torah’s perspective and what is objectionable?  While we’re not about to give our support to anyone campaigning on a Torah Economy platform, since there is a whole lot of modern complexity to deal with first, these issues are relevant to how we think about various political causes and legislative agendas.

I touched on the question of the Torah Economy several weeks ago.  Regular reader and frequent commentator, Yair Elnadav, initially commented on the post, but agreed to develop these themes into a guest post.

Capitalism and property ownership are protected by Jewish law.  In fact, a large part of Talmud deals with business law. The Mishna in Avot (5:10) states that one who says “what is mine is yours and what is yours is mine is an am ha’aretz, an ignorant person.”  R Ovadia of Bartenura (B Italy, D circa 1500 Jerusalem) explains that this refers to people who believe that private property should be used to benefit all members of society equally.  They do not know that “one who hates presents shall live” (Mishlei 15), and that independence is a virtue.  They are called “ignorant” because they do not have the intelligence to differentiate between proper and improper policies.

Rabbi Samson Raphael Hirsch further explains that the Mishna is telling us that Socialism is foolish. He explains that one is not free if he cannot own property. And someone can only give if he owns something. If the law requires everything to be shared, then the recipient is taking what is by right his.  Without private property, there is no giving or receiving.

Nevertheless, the Torah clearly regulates the economy to benefit society.   For example, the laws of ona’ah prohibit excessive and exorbitant pricing (Bava Metzia 49b).  The rabbis of the Talmud made many edicts to protect the market, such as banning cartels and monopolies (Bava Batra 90b) as well as other practices to further protect consumers (see Succah 34a).

The mitzvah of Yovel goes even further to create a social safety net.  The Torah states that every fiftieth year, Yovel (Jubilee), all land that had been sold since the previous Yovel reverts to its original owner (Vayikra 25:23 – 24).  Rambam in Moreh Nevuchim  (section 3 ch 39) explains that the purpose of this law is to protect the poor and insure that they will always have livelihoods.  By prohibiting the permanent alienation of land, the Torah protects debtors who are forced to sell.  At the same time, the Torah makes it impossible for families to accumulate and retain wealth by buying and passing on real estate to their descendents into perpetuity  These laws are particularly striking when we realize that the original Jewish society in Eretz Yisrael was overwhelmingly agricultural.  Livelihood, wealth and permanence depended on land ownership.  The Torah itself explains the reason for the law as “for the land is Mine [God’s].”

It seems that the underlying philosophy of the Torah Economy favors  capitalism limited by significant protections for the  poor.

This leads us into the Torah’s view of caring for the community’s needy.

The Torah describes the eglah arruffah ceremony performed over a person found dead outside of the city limits. The elders of the city recite a vidduy, confession, “And they shall answer and say ‘our hands didn’t spill this blood and our eyes did not see” (Devarim 21:7). Rashi, citing the Talmud (Sotah 45b) explains the city leaders are saying that they did not indirectly cause his death by noticing him within their city but allowing him to leave without food or accompaniment. It is obvious from the Talmud that it is incumbent on leaders of cities to make sure that the poor do not go hungry.

R. Yona of Girona (D 1263 Spain) states that although the people of Sodom committed many sins, such as theft, corruption and promiscuity, the verse only mentions one sin (Yehezkael 16:49) — “the hand of the poor and destitute – they did not strengthen.” (Sha’arei Teshuva 3:15)

The following few halachot relating to charity clarify the Torah’s view on public role in providing for the poor.

Rambam states the amount of charity one must give is as follows: If he can afford to support all the poor, he must do so.  If he cannot, he must give up to 1/5 of his property to fulfill the mitzvah of charity. The average person gives 1/10 of his property. If a person gives less than that, he has an evil eye (i.e., he is miserly). (Mishne Torah Mattanot Aniyyim 7:5).

Charity money is used to provide not only food, but also any living essentials the poor may lack, such as clothing, household utensils etc. (Rambam ibid 7:10)

The greatest form of charity is assisting the poor to become self sufficient by giving them jobs or loans, etc (Rambam ibid 10:7).

Although charity is a personal requirement, in the ideal halachic society it is the community, not the individual, that controls the distribution of charity money.  Rambam (ibid 9:1) tasks the city with making sure that the poor are provided for.  If an individual does not contribute to the city’s charity fund, or gives less than he should, the courts can force him to give more, and can confiscate property in order to provide for the poor.  Rambam (ibid 7:10).

Ultimately, ma’aser kesafim (tithing) is not private philanthropy, but a rather the mandatory fulfillment of a community obligation.

It seems to me that the Torah philosophy supports a strong welfare system. Poor are to be supported by the community, rather than allowing them to either remain destitute or find their own way out of poverty. Government is empowered to collect, enforce, and distribute to the needy.  Since the greatest form of charity is assisting the poor to be self sufficient, a priority should be given to helping people get skills, jobs, business loans etc, to help the poor become independent.

In conclusion, while the Torah supports welfare, it is by no means “Socialist” or “Communist”.  Rav Hirsch, mentioned above, says that there can only be welfare when there is Capitalism, since we can only choose to provide welfare if we are in a capitalist economy. This contradicts many political commentators that equate welfare with Socialism.

This essay is not meant to be taken lema’aseh, but rather to explore the issues of what a Torah Economy would look like, using Jewish sources. Hence the sourcing is not complete and is not used in a methodological way to determine halacha lema’aseh, actual law.  For additional reading, see Facing Current Challenges, Rabbi Dr Yehuda Levi, chapters 6 and 7.

Against a so-called “Orthodox Tea Party”

The political and ideological interests of Orthodox Jews often coincide with various conservative agendas.  I, for one, would love to receive school vouchers.  Kashrut, yeshiva tuition, home prices and rents in Jewish communities are expensive, so tea party style tax breaks would be particularly welcome by most people I know.  As I live in a community that absorbed Jewish refugees from the Middle East, and have family living in Israel, I have little patience or sympathy for international thugs or coy flotillas, although I realize that international policy is nuanced and that pragmatism often trumps principle.

But we are not ideological twins with any group within the conservative movement.  The Martin Grossman saga raised questions as to whether, behind the law-and-order rhetoric of many Orthodox Jews, Judaism really can support the death penalty.  It seems to me that a nation with a strong welfare system is probably more in tune with the community values of the Torah than the conservative notion of fend-for-yourself individualism.  The halachic marketplace may be capitalistic, but it is also highly regulated by laws relating to interest, competition, permissible profit margins, among many other laws.

This ideological disparity is one reason why we should be wary of aligning ourselves too closely with any conservative group, even if we do indeed support specific candidates or policies.  But beyond the mere ideological disparity, there’s a particular danger in aligning ourselves with a movement that may turn out to be a political dead end, especially if the alliance is premised on political expediency rather than a commitment to sharing core values.  If (and when) the movement loses momentum, our political activism may stall with it.  Worse, if (and when) the movement is discredited for lacking a coherent policy, for supporting candidates who are populist, but politically obtuse and/or narrow minded bigots, we risk becoming discredited ourselves.  Our own political voice will be lost when it counts.

Yesterday’s New York Times ran an article, Agendas of Paladino and Rabbi Meld which described Rabbi Yehuda Levin’s tea party enthusiasm and backing of Carl Paladino as the Republican candidate for governor:

The visit had strategic appeal for both sides: Mr. Paladino, an anti-abortion, anti-gay-marriage Roman Catholic businessman from Buffalo, hoped to find like-minded voters among the politically and socially conservative Orthodox Jews of Brooklyn. And Mr. Levin, who has long dreamed of creating “an Orthodox Tea Party,” as he put it, was eager to help, in part by lining up appearances for Mr. Paladino at synagogues and yeshivas.

I’m not really sure who Rabbi Levin is, but I hope he has less influence in the Jewish communities than he’s being given credit for.  He did more than just pick the wrong guy and the wrong movement to hook up with.  The Republic party, and likely tea party leaders as well, are trying to disown Paladino over anti-gay remarks prepared by Rabbi Levin.  Even if Rabbi Levin, as he says, “stands ready to defend the content” of the portions of the speech he drafted, this is not the kind of political involvement we need.

In fact, just the idea of an Orthodox Tea Party is preposterous, since there’s nothing Orthodox about the tea party’s platform (or lack thereof).  The tea party may be influencing national politics right now, but it can’t last in its current form, based more on whipped up, often disingenuous, outrage than on real policy.  And when there is a backlash, the interests of Jewish communities don’t have to be there to go down with it.

Civilization and culture in the age of Yaval, Yuval and Tuval Cain

Rabbi Daniel Yolkut of Cong. Poale Zedeck in Pittsburgh, PA, related a very interesting insight during his Shabbat morning derasha this past week.

Cain’s descendant, Lemech, had three sons — Yaval, Yuval and Tuval Cain — who together appear to have developed the building blocks of civilization.  Yaval was the first to systematically domesticate animals.  Yuval was the first to create musical instruments.  Tuval Cain was the first to create tools from metals.  It was thus Cain’s descendants who first discovered the skills necessary for people to join together into permanent societies with tools, culture and a steady supply of food.

It is interesting to note that many of the names of Cain’s descendants were either identical or similar to the names of Shet’s descendants.  Each line had men named Hanoch and Lemech.  Cain’s line had Metushael while Shet’s had Metushelah.  However, Shet’s line had no one with names similar to Yaval, Yuval and Tuval Cain.  While Shet had several righteous descendants, the Torah does not relate that any one among Shet’s descendants had the impact on the formation of civilization like Yaval, Yuval and Tuval Cain.

Rabbi Yolkut suggested that perhaps the drive to advance culture and civilization was a result of Cain’s murder of Hevel.  In an attempt to either address or move beyond the guilt, Cain’s descendants turned to the development of culture.  Put in these terms, the earliest examples of art and culture were produced by the burdens of guilt and anxiety, and the need to address the darker side of human actions and motivations.  Indeed, while the names Yaval, Yuval and Tuval have no equivalent among Shet’s descendents, they are all similar to Hevel’s name.

Essay on hospice care

Questions of halacha aside, the August 2, 2010, issue of New Yorker contains an excellent essay by Dr. Atul Gawande on hospice care. Hospice care focuses on treating pain and increasing the quality of life for terminally ill patients, rather than continuing to aggressively treat the underlying illness in an effort to prolong the patient’s life, when the treatment would likely cause additional suffering without increasing the chances of survival. It’s not an easy article to read, but the ideas are important. As always, life and death questions need to be made in close consultation with a qualified halachic authority. The article can be found here.

Jewish opposition to the Holocaust Insurance Accountability Act of 2010

When is a contract not a contract?

JTA reports today that six Jewish organizations have signed a letter opposing the Holocaust Insurance Accountability Act of 2010.

The American Jewish Committee, the Anti-Defamation League, B’nai B’rith International, the Conference on Jewish Material Claims Against Germany, the World Jewish Congress and the World Jewish Restitution Organization condemned the Holocaust Insurance Accountability Act of 2010 in a recent letter to Rep. John Conyers (D-Mich.), chairman of the House of Representatives Judiciary Committee.

The bill would allow Holocaust survivors to sue insurance companies in U.S. courts for unpaid Holocaust-era policies. Claimants previously had to go through the International Commission on Holocaust Era Insurance Claims, which shut down in 2007.

A number of Florida-based Holocaust survivor groups, backed by some state lawmakers and insurance commissioners, say ICHEIC was fatally flawed, unduly deferential to the insurers and paid out only a tiny percentage of liable claims. ICHEIC officials have said that the process was as pliant as the law would allow.

The letter from the Jewish groups said that the bill would harm negotiations with Germany, which contributes hundreds of millions of dollars for survivors living in poverty, by reopening previously settled agreements.

“Many survivors wouldn’t receive anything in their lifetime” if the bill were to pass, said Roman Kent, a representative for the Claims Conference. “If I go to court, it will take 10 to 15 years to get anything. So what practical effect would the bill have?”

Proponents of the bill say that Germany’s commitment to reparation payouts is ironclad in the law and would not be affected by reopening the ICHEIC process.

The full JTA article can be read here.

Child’s religious exposure in divorce case

A few interesting cases involving child custody and religion have recently been decided in Chicago. From Girl’s religion at issue in divorce war, Chicago Tribune, Feb. 17, 2010:

Rebecca Reyes opened an e-mail from her estranged husband in November to learn to her shock that he had their 3-year-old daughter baptized in the Catholic Church even though she said the couple, in happier times, had agreed to raise her in the Jewish faith.

What happened over the next few months brought the couple’s private battles into the open and raises questions about how far the court system can — or should — go in dictating what faith separated parents teach their children. After the unannounced baptism, a Cook County Circuit Court judge took the unusual step of temporarily barring Reyes’ husband, Joseph, from exposing their child to any religion other than Judaism.

But Joseph Reyes then allegedly defied the order by taking his daughter to Mass at Holy Name Cathedral — with a television news crew in tow.

The wife’s lawyers blasted Joseph Reyes’ defiance and demanded he be held in criminal contempt, a charge that carries a maximum punishment of six months in jail if convicted.

…

While many divorce proceedings involving interfaith couples devolve into bitter feuds over religion, Emily Buss, a law professor at the University of Chicago, called the order to temporarily limit the child to Judaism “striking.”

“The idea is we change religious views — that is what religious freedom includes,” Buss said. “Even if (one) parent has more authority in the form of more custody, the other parent can (usually) … still expose the child to his or her religion even if it was not the religious practices within the family when it was intact.”

More background can be read on the Chicago Jewish News website.

The father, Joseph Reyes, reportedly told a reporter for CBS2 Chicago: “I am taking her to hear the teachings of perhaps the most prominent Jewish rabbi in the history of this great planet of ours. I can’t think of anything more Jewish than that.” Not to argue with such glibness or anything, but one cannot logically be rabbi, mesit and messiah.

In April, another judge lifted the restraining order, allowing the father to take his daughter to church during his regularly scheduled visitation. The judge also ruled that the father would have visitation for Christmas and Easter. The mother would always have the child on Rosh Hashannah, Yom Kippur and Passover. I couldn’t tell from the news reports whether the criminal contempt charges were ultimately dropped as well.

Rubashkin acquitted of child labor charges

As has been widely reported, Sholom Rubashkin was found not guilty of all 67 charges of child labor violations. The New York Times article adds:

The verdict brought rare good news for Mr. Rubashkin since the raid at the plant in Postville on May 12, 2008, when federal agents arrested 389 illegal immigrants, most from Guatemala. The operation became an emblem of the high-profile immigration enforcement strategy under President George W. Bush.

In November, Mr. Rubashkin was convicted in federal court in Iowa of 86 counts of bank fraud in connection with loans to Agriprocessors. Federal prosecutors are seeking a 25-year sentence on those charges. Sentencing is scheduled for June 22.

Federal law experts challenge the proposed life sentence for Sholom Rubashkin

From Life Sentence Is Debated for Meat Plant Ex-Chief, New York Times, 4/28/10:

In a final chapter to the long aftermath of a 2008 immigration raid at a kosher meatpacking plant in Iowa, a federal court in Cedar Rapids heard arguments on Wednesday over the sentencing of Sholom Rubashkin, the former chief executive.

Mr. Rubashkin was in charge of the Agriprocessors plant in Postville, Iowa, when immigration agents landed in helicopters to detain nearly 400 illegal immigrant workers. In November, Mr. Rubashkin was convicted of 86 counts of federal bank fraud in connection with loans to the company.

Prosecutors, citing Mr. Rubashkin’s “blatant lawlessness, utter lack of remorse, his egregious and repeated attempts to obstruct justice,” have asked Judge Linda R. Reade to impose a life sentence.

The proposed sentence startled legal experts around the country. In a letter written to Judge Reade on Monday, six former attorneys general, one former solicitor general and more than a dozen former United States attorneys criticized “the government’s extreme sentencing position” and the “potentially severe injustice” that could result.

The former Justice Department officials questioned the interpretation by Stephanie M. Rose, the United States attorney for the Northern District of Iowa, of the federal criminal sentencing guidelines that would apply to Mr. Rubashkin’s white-collar crime.

“We cannot fathom how truly sound and sensible sentencing rules could call for a life sentence — or anything close to it — for Mr. Rubashkin, a 51-year-old, first-time, nonviolent offender,” they wrote. The letter is signed by Janet Reno, William Barr, Richard Thornburgh, Edwin Meese III, Ramsey Clark and Nicholas Katzenbach, all of whom served as attorney general.

Another letter, submitted by former federal judge Paul Cassell and former U.S. Attorney Brett Tolman, compares the proposed federal sentence with the federal guideline sentencing for other crimes, and states that the proposed sentence is disproportionate to the offenses committed. A life sentence would reflect crimes as serious as first degree murder and would be more severe than sentences for second degree murder, rape, kidnapping, and arming foreign terrorist organizations. The full letter can be read here.

The website Justiceforsholom.org has prepared an online letter to Judge Reade that legal professionals can sign to support the Cassell and Tolman letter. The letter in support can be accessed here.

Healthcare reform and Pirkei Avot

According to an article in yesterday’s New York Times, votes scheduled in Congress this coming week will decide the fate of health care legislation, and with it, perhaps, the fate of the November 2010 congressional elections and the remainder of Barack Obama’s presidency.

At such a critical moment in his presidency, it makes perfect sense for President Obama to turn to the wisdom of the Torah. From the transcript of President Obama’s speech on health insurance reform at Arcadia University on March 8, 2010:

Now, since we took this issue on a year ago, there have been plenty of folks in Washington who’ve said that the politics is just too hard. They’ve warned us we may not win. They’ve argued now is not the time for reform. It’s going to hurt your poll numbers. How is it going to affect Democrats in November? Don’t do it now.

My question to them is: When is the right time? (Applause.) If not now, when? If not us, who?

The President or one of his speechwriters must have been reading Pirkei Avot (Ethics of our Fathers):

?הוא היה אומר: אם אין אני לי, מי לי; וכשאני לעצמי, מה אני; ואם לא עכשיו, אימתי


He (Hillel) used to say: If I am not for myself, who is for me? And when I am for myself, what am I? And if not now, when? (Avot, 1:14)



In using Hillel’s words as a rhetorical flourish, the President might do well to continue reading to the next Mishnah:

שמאי אומר…אמור מעט ועשה הרבה

One’s rhetoric should never exceed his accomplishments, (Avot, 1:15),

which may turn out to be the phrase that ultimately defines Obama’s presidency. As an article in the New York Times Magazine, also published yesterday, said:

By the end of his first year, Obama expected to have revamped the nation’s health care system, restructured its energy industry to curb climate change, reined in Wall Street with a new regulatory structure, closed the prison at Guantánamo Bay, signed an arms-control treaty with Russia, begun rapprochement with Iran and jump-started the Middle East peace process. Instead, the president’s approval ratings have fallen by more than 20 percentage points, unemployment remains higher than even the worst initial White House forecasts and much of the president’s agenda is stalled. Most significant, the fate of Obama’s signature health care initiative is uncertain.

Editorial on the Jonathan Pollard case

The 5 Towns Jewish Times published an editorial by Rabbi Yair Hoffman, Re-examining the Pollard Issue, which argues against treating Jonathan Pollard as a hero. Pollard is currently serving a life sentence for espionage and although eligible to apply for parole since the early 1990′s has apparently not done so.

Hoffman’s article can be read here.