Like Ole Man River, the Lanner case just keeps on rolling, begetting new progeny of contentiousness and accusation. We now are at the beth din stage, the revisiting of a proceeding conducted thirteen years ago by three deservedly respected rabbinical figures at Yeshiva University. There is disagreement over what transpired then, although it is now generally agreed that there is a need to offer an apology to the families – children and parents – who were hurt by Lanner. I expect that this will happen quite soon.
I doubt that this will bring an end to the finger-pointing, if only because Lanner is appealing his New Jersey conviction and there are those who have a stake in prolonging the story. We should be mindful of the point I made weeks ago that despite unprecedented attention to clerical abuse, especially in the Catholic church, there have been no additional charges of abuse in our community.
There is also an opportunity to reflect on the role of beth dins or religious courts. They are important institutions in our religious life, but even many Orthodox Jews do not understand how they operate or the limitations on their authority.
Jerome Frank, once a noted legal philosopher and jurist who is no longer noted, wrote two generations ago that except for sickness or death, he most feared being a party to a legal proceeding. Religious Jews who are subject to the jurisdiction of beth dins have said much the same thing about our religious courts. In my three score and nearly ten years of residency on this planet, my direct involvement in either civil or religious tribunals has been thankfully meager, despite an active life that includes much involvement with courts and lawyers. Limited though my experience has been, I do not relish the thought of being a party in any kind of trial.
The unease that people feel about civil cases or beth dins is commonly attributed to the feeling that judges and courts are unreliable, even untrustworthy, and that they are weak instrumentalities for the achievement of justice. It’s also said that there is an abundance of corruption and incompetence and chapter and verse are offered in support of such accusations.
There are, for sure, corrupt judges, especially in lower level civil courts, although at times the buying of judicial votes can reach high up into the judiciary. If the notion of corruption is extended to include situations when a judge is “reached” – and not merely financially – by party officials or a well-connected lawyer or in some other fashion, it’s certain that civil courts are awash in corruption. In Brooklyn, to provide one fetid illustration, the entire court system is a stinkpot.
There are instances of corrupt dayanim or religious court judges. But I believe that the situation is far better in these courts than it is in civil courts. Competency is another matter and it is made more problematic for beth dins because our religious court system is largely ad hoc and even chaotic. In an important sense, a beth din is simply the coming together of three rabbis for the purpose of deciding a particular case, an arrangement that smacks too much of pot luck.
In an interesting way, beth dins acknowledge the tenuous nature of their fact-finding when they require litigants to sign a document acknowledging that the ruling to be issued may be a compromise that is close to what religious law obligates. Although they operate under the authority of state arbitration laws, which means that their decisions are binding unless there is credible evidence that the dayanim acted improperly, it is appropriate for beth dins to acknowledge their limitations. Despite strong communal and religious mores that proscribe going to civil courts to resolve disputes among religious Jews, it’s no secret that many such Jews avoid beth dins and prefer ordinary civil proceedings. While beth dins can issue statements saying that persons who have so acted have violated halacha or religious law, only rarely do such pronouncements have an impact.
When parties agree to go to a beth din and settle on which one to use, the religious judges have truncated authority. As a rule, they cannot compel the presentation of evidence or punish those who refuse to testify or witnesses who lie. Their rulings are based on what they hear and read, which heightens the prospect for error. I believe that the honorable dayanim who heard the Lanner case probably erred because they did not have all of the evidence and some of what they heard may have been tainted.
Ordinarily – and this means nearly always – beth din opinions are terse, certainly far briefer than what secular judges often produce. This is one reason why beth din proceedings are far quicker and far less expensive than civil cases where extensive delay is par for the course because of crowded court calendars and legal maneuverings. Justice delayed is often justice denied and so on this ground alone, beth dins should be preferred.
Apart from their relative brevity, beth din decisions come without dissenting opinions, a feature that litigants who are unhappy over the outcome interpret as proof that they haven’t received a fair hearing. Most beth dins consist of three dayanim and while disagreement is not as widespread as it is in appellate American courts, it does occur. In line with the goal of arriving at a consensus that may reflect a compromise, disagreements are usually resolved by the dayanim. When they are not, so that the decision is in effect 2-1, there is no indication of dissent. Dissenting opinions, it is believed, weaken respect for beth dins.
A similar attitude works against post-decision explanations or apologies, even at times when new evidence casts serious doubt on the ruling. To have dayanim explain or clarify or apologize is viewed as cheapening the beth din process. The Lanner case is extraordinary and therefore it justifies departure from the usual procedure.