140 Mark Washofsky

42. Mark Tushnet ,“The Degradation of Constitutional Discourse,” Georgetown Law Review 81(1992), 251-311; Daniel A. Farber and Suzanna Sherry,“Telling Tales Out of School: An Essay on Legal Narratives,” Stanford Law Review 45 (1993), 807-855; Brooks(note 40, above), 16; Posner(note 18, above), 345-357.

43. See Baron(note 23, above), especially at 271, and Gary Peller ,“The Discourse of Constitutional Degradation,” Georgetown Law Journal 81(1992), 31 3-342.

44. 1 develop this theme in my“Responsa and Rhetoric: On Law, Literature, and the Rabbinic Decision,” in John C. Reeves and John Kampen, eds., Pursuing the Text: Studies in Honor of Ben Zion Wacholder on the Occasion of his Seventieth Birthday(Sheffield, UK : Sheffield Academic Press, 1994), 360-409, where I cite much of the relevant literature. See as well my“Taking Precedent Seriously: On Halakhah as a Rhetorical Practice,” in Walter Jacob and Moshe Zemer , eds., Re­examining Progressive Halakhah(New York : Berghahn Books, 2002), 1-70, and “Responsa and the Art of Writing: Three Examples from the Teshuvot of Rabbi Moshe Feinstein, ” in Peter S. Knobel and Mark N. Staitman, eds., An American Rabbinate: A Festschrift for Walter Jacob (Pittsburgh : Rodef Shalom Press, 2000), 149-204. The latter two articles are available online at

http://huc.edu/faculty/faculty/washofsky.shtml: 45. B. Shabbat 68a-b; B. Shevu ot 5a; B. Keritot 3b.

46. Yad, Shegagot 1:1.

47. See Tosafot, Shabbat 68a, s.v. ger: this is the individual who was converted by a Jewish court(for otherwise, the conversion would not be valid) whose members did not inform him of the mitzvah in question. Since he lives by himself among the Gentiles, he has no way of knowing that his act violates a commandment.

48. Oneis rahmana petareih(“The Torah exempts the coerced person from culpability for his action”): B. Bava Kama 28b and Avodah Zarah 54a.

49. Yad, Shegagot 2:6; Meiri , Beit Habechirah, Shabbat 68a. This opinion follows that of Rav and Shmuel in the Talmud (B. Shabbat 68a), rather than that of R. Yochanan and Riesh Lakish who exempt the“captive infant” from culpability. For an explanation of this puzzling ruling(for the halakhah usually follows R. Yochanan over Rav), see Kesef Mishneh to Yad ad loc. And compare Maimonides ’ theoretical conclusion here with his application of the tinok shenishbah metaphor to the Karaities, below.