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Maryland High Court Judge Responds To Dissent With Biblical Midrash

By Howard M. Friedman

Maryland's highest court, the Maryland Court of Appeals, today decided a case on the applicability of the statute of frauds provision of the Maryland Credit Agreement Act.  In Pease v. Wachovia SBA Lending, Inc., (MD Ct. App., Oct. 21, 2010), three judges in a partial dissent argued in part that the majority should have "amplified" its reasoning.  Reacting to that criticism, the majority opinion by Judge Harrell [corrected] added this footnote (n.7), responding with a Midrash from Jewish religious writings:

The Concurring and Dissenting opinion's efforts to grapple with the Maryland Credit Agreement Act's plain language, legislative history, and how other jurisdictions may havetreated debatably similar facts under arguably similar statutory schemes, where not entirely necessary, call to mind the story of the Exodus. The Midrashic interpretation of the Exodus from Egypt recounts that, upon reaching the Red Sea, the waters did not automatically part before the Israelites. MIDRASH RABBAH, VOL. III 272 (S.M. Lehrman, trans., 3d ed. 1983). While the Israelites stood by the shore contemplating their impending doom, Nahshon Ben Amminadab entered the water until the sea reached his nostrils. THE JEWISH ENCYCLOPEDIA VOL. IX 146 (Funk & Wagnall 1905); MIDRASH RABBAH, supra. It was not until this act of self-sacrifice that the sea?s waters parted. Imagine, however, that there was a way for the Israelites to continue on their path without having to wade in water over their heads. The Concurring and Dissenting opinion here takes on the Maryland Credit Agreement Act at least up to its eyebrows; we wade in, however, only up to our nostrils.

We regret that the quality of our abridged analysis apparently does not meet the more rigorous standards expected by the subscribers to the Concurring and Dissenting opinion.

Full post as published by Religion Clause on October 21, 2010 (boomark / email).