Jews and the Law ed. by Ari Mermelstein (review)

Jews and the Law addresses an ambitious, multi-faceted topic and does so in a fascinating but sometimes sprawling manner. It includes an introduction and twelve essays, each written by a distinguished author. The essays were presented at, or inspired by, a 2006 conference on “Jews and the Legal Profession” hosted by Cardozo Law School. Four were previously published whole or in part.

As the introduction describes, “The book is organized in three overlapping categories: Jewish Lawyers in Life and Practice; Jews, Antisemitism, and Legal Development; and Legalism and the Jews” (5). The categories are neither airtight nor fully descriptive of the essays in each. A formidable challenge for readers of this book is seeking overarching or common themes.

One could present this anthology as a “fascinating collection of essays by distinguished scholars [that] illuminates the distinctive and intricate relationship between Jews and the law,” as Professor Jerold Auerbach does on the book jacket. Alternatively, one could view it as an unusual assortment of essays linked mainly by the fact that they are about Jews and their relationship to secular law in the United States, Germany and Israel. Perhaps both are true. Either way, a brief review can hardly capture this complex and dense book. I have chosen to focus on a central question—what is the core tension that the book seeks to illuminate about “Jews and the Law”?

My first hint came in the middle of the introduction when it refers to the “‘dual allegiance’ of Jewish civic identity, meaning the tension that arises between secular citizenship and Jewish religious law” (4). Yet the introduction acknowledges that many Jewish lawyers beginning “in the immediate post-Civil War era cleaved to Reform Judaism,” not Orthodoxy (3). Therefore, it is not clear how “Jewish religious law” created a tension for those non-Orthodox Jewish lawyers. It may be true, as the book’s second chapter about New York’s Emergency Rent Laws of 1920 points out, that non-observant Jewish lawyers sometimes used Jewish law, as well as Irish and other non-U.S. law, to buttress their secular legal arguments, but that hardly seemed to reflect a “dual allegiance” or even a “tension.”

Although Jews have often been seen as “the other” by mainstream societies, and that may have contributed to a sense of “difference” when Jews sought to enter secular law practice, their relative isolation in the world of law practice until World War II is hard to ascribe to their religious orthodoxy or to a tension between the secular and religious dimensions of law as it affected the lives and practices of most Jewish lawyers. Indeed, the book seems to acknowledge that when it states that, at least by the last half of the 20^th century, a lawyer’s religious beliefs and practices mattered much less than his or her social or political views. Amplifying that idea, the first of the book’s three sections describes barriers to some types of law practice faced by Jewish lawyers in Germany and the United States as more closely connected to the political viability of liberalism, to which many Jewish lawyers were inclined, than to a perception that those lawyers had divided allegiances based on a commitment to Jewish religious law.

Another recurring theme of many book chapters is a variant on the classic chicken-egg dilemma–the extent to which Jewish lawyers, with their liberalism and commitment to “causes,” changed the law versus the extent to which liberalism, “causes,” and the law may have shaped Jewish lawyers, not only in their capacity as lawyers, but also as citizens. Also related is the extent to which meritocracy determined who was admitted to elite law schools and hired for the most prestigious, highest paid private law firms positions. Many Jews and Jewish lawyers undoubtedly have the abiding belief that, under a meaningful and fairly applied system of meritocracy, liberated from quota constraints and outright bias, Jews would be even...