LATKE V. HAMANTASCH
KALVEN, HARRY
UNDIGESTED TENSIONS IN THE WARREN SUPREME COURT LATKE V. HAMANTASCH AN ESSAY IN GASTRONOMIC JURISPRUDENCE HARRY KALVEN Mr. Chairman, may I warn at the outset that I intend to depart radically...
...We turn then from natural law to law in action, for law consists also in the behavior of officials— judges, coroners, jurors, policemen...
...So, Mr...
...But we must remember that law has many meanings...
...We look at Soviet law and find that a policeman's latke is a happy one...
...there is natural law, comparative law, law as custom, law in action, as well as law in the books...
...If you ask yes, but what is the answer, I can only repeat what I have just said and remind you of the scene in Thornton Wilder's play, "The Skin of Our Teeth...
...The police then subjected him to a stomach pump which produced the evidence, on the basis of which he was convicted...
...There is also the recent great case of Rochin v. California...
...So that does not help too much...
...Chairman, and the audience, will bear with me I shall attempt a serious presentation, for my discipline, the law, is an inherently serious business...
...First, that hamantasch were not legal, and second, that they were not tender...
...It seems to me that a radical departure would be immediately effected by either two types of presentations: first, one that is genuinely serious, and, second, one that is genuinely funny...
...The natural answer is perhaps somewhat indecisive...
...On that note I turn the rostrum back to the speakers that follow...
...Chairman, there you are...
...In either case the Court will say that police intrusion into his stomach is not Kosher...
...We have in law a great index of all legal materials in some 100 volumes—the West American Digest System...
...I do have one case that is triangularly in point, Tax v. Chicago Transit Authority, 345 111...
...Chairman, may I warn at the outset that I intend to depart radically from the pattern that has been set by prior discussants over the many years this debate has raged...
...It is a great institution...
...Chairman, indexed in the Digest...
...Which do you think is better, a latke or a hamantasch...
...Natural law offers a clue...
...Our title, you will recall, is Trial by Jewry...
...Chairman, that on the law's view the latke and the hamantasch cannot be digested— they remain indigestible...
...Since we are in the general area of bakery law, we turn first to the great field of torts...
...The conductor evicted him and Tax sued for the pain and suffering occasioned...
...we look in vain under the law's rubrics—res gesta, res ipsa loquitur, coram nobis, quo warranto, quo vadis—they are not, Mr...
...Unfortunately, however, the majestic equality of the law makes it likely that the same rule applies when he has swallowed a hamantasch...
...Chairman, I realize that tonight we are the Hillel Foundation and not the Anti-Defamation League, but the title of tonight's session brings to my mind a faint yet unmistakable trace of anti-Semitism in the law that candor compels me to bring to your attention...
...The issue I put to you tonight is: What does the long perspective of the law add to the deep and perennial conflict of values we are discussing...
...It means that once a man has swallowed a latke, the Constitution protects the privacy of his stomach...
...In this case a man with the improbable name of Tax boarded a bus and attempted to pay his fare with a hamantasch...
...It involved a suspected dope peddler who, when the police entered, swallowed the evidence...
...The arresting answer is that we do not find them...
...Is either the latke or the hamantasch classified by law as a tort...
...Chairman, seems to me offensive, and I bring it to your at- tention...
...So we enlarge our analytic net...
...I will bring before you some hitherto little noticed legal materials...
...If you, Mr...
...And here we get another important insight when we recall that a policeman's latke is not a happy one...
...Antrobus, as you may recall, has just invented the wheel and one day his son comes in excitedly with a cart he has made by attaching two wheels to an axle...
...Or perhaps you would prefer the comparative law approach...
...Peter," I said, "listen carefully...
...Where do we find latke and hamantasch in the Law's digest tracts...
...On appeal, the Supreme Court upset the conviction, holding that this was an improper way to obtain evidence...
...Antrobus is unimpressed and says: "Once the principle is clear any fool can make the applications...
...The case has deep significance for us tonight...
...And the sweet voice of natural law said: "Huh...
...So I put the question to my youngest son—Peter, the one most likely to still be trailing clouds of glory...
...It is agreed that natural law is the law we know without going to law school, the law ingrained in our conscience, our native sense of justice, and it is agreed too that the young are likely to be closer to this than the rest of us...
...The court in a notably unreported opinion held against Tax on two grounds...
...From this I can only conclude, Mr...
...There is the clear legal answer to the riddle that has puzzled this group for so many years...
...UNDIGESTED TENSIONS IN THE WARREN SUPREME COURT LATKE V. HAMANTASCH AN ESSAY IN GASTRONOMIC JURISPRUDENCE HARRY KALVEN Mr...
...Yet the law constantly speaks of the petty Jewry, in contrast to the grand Jewry—and in the context of tonight's session, that, Mr...
...Our quest is, however, not quite ended...
Vol. 2 • December 1976 • No. 3
