136 Mark Washofsky
11. The standard monograph is Judith Bleich , Jacob Ettlinger , His Life and Works: The Emergence of Modern Orthodoxy in Germany (Ph.D. thesis, New York University , 1974). See also her article“Rabbinic Responses to Nonobservance in the Modern Era,” in Jacob J. Schacter , ed., Jewish Tradition and the NonTraditional Jew(Northvale, NJ : Jason Aronson, 1992), particularly at 72-76.
13. I confess to a considerable degree of trepidation, given my deep admiration for Katz 's scholarly accomplishments. Moreover, in light of his recent passing, I am especially cognizant of the Sages’ counsel that one not refute the words of a great scholar after he has died(B. Gitin 83a, and see Rashi ad loc., s.v. ein meshivin el ha’ari).
15. Katz (note 14, above), 344-345.(The article first appeared in Kiryat Sefer 31 [1956], 9-16.) See as well at 213-214, where Katz critiques Heinrich Graetz ’s treatment of the 16™-century ordination controversy in Safed on the grounds that the eminent historian attempts to look past or through the halakhic objections raised by the opponents of R. Ya'akov Beirab in an effort to discover their“real” motivations. That article first appeared in Zion 16(1951), 28-45. On this aspect of Katz 's scholarly approach to halakhah see my“Halakhah and Translation: The Chatam Sofer on Prayer in the Vernacular,” CCAR Journal 51:3(Summer, 2004), especially at 142-144.
16. See, in general, Lon L. Fuller , Legal Fictions(Stanford : Stanford University Press , 1967). The quotation is at p. 2. I do not mean to imply that Fuller ’s view of legal fiction is entirely uncritical. He does believe that certain fictions have outlived their usefulness. But that is simply another way of saying that legal fiction on some level is useful; it is, in other words, endemic to legal language and the enterprise of law.
17. Fuller, note 16, above, 10.
18. Indeed, those associated with Law and Literature tend to deny the existence of any unified scholarly agenda. See, for example, James Boyd White ,“Law and Literature: No Manifestos,” Mercer Law Review 39(1988), 739-751. Law and Literature scholars tend to be quite critical of their colleagues’ fundamental assumptions and approaches, a fact that confirms the movement’s lack of agreedupon methodological foundations. Compare Richard A. Posner , Law and Literature