New Article: Mundlak, Comparing Trade Union Strategies in Four Countries

Mundlak, Guy. “Organizing Workers in ‘Hybrid Systems’: Comparing Trade Union Strategies in Four Countries — Austria, Germany, Israel and the Netherlands.” Theoretical Inquiries in Law 17 (2016): 163-200.

 

URL: http://www7.tau.ac.il/ojs/index.php/til/article/view/1376

 

Abstract

The freedom and right to associate carries distinct meanings in different systems of industrial relations, giving rise to distinct institutions. Where bargaining is based on grassroots association, rates of membership in trade unions and coverage of collective agreements are low. Where bargaining is actively endorsed by the state, high rates of membership are matched by considerable coverage. Over the last two decades, some countries, four of which are studied here, have gone through a process that I designate as hybridization, in which a gap emerges between a rapidly declining rate of membership and persistent relatively high level of coverage. The article accounts for the growing gap between coverage and membership and its implications. On the basis of extensive interviews with trade union officials, organizers, works councils’ members, Labor Chamber representatives, academics and journalists in the four countries, the article further seeks to document and explain new organizing practices at two levels. First, why do unions seeks to organize, despite persistent power accorded to collective agreements by the state? Second, which strategies are used for current recruitment and organizing practices? The discussion highlights the ongoing tension that is folded in the meeting of institutions that are aimed at sustaining the centralized system of bargaining and social partnership, with the dynamics that are characteristic of raising membership levels. Some best practices that seek to address this tension are identified, but are also characterized as difficult to emulate and extend as a general practice.

 

 

 

New Book: Amir, Abortions as a Silenced Issue in Israel (Hebrew)

אמיר, דלילה. הפלות כסוגיה מושתקת בישראל. על פרספקטיבה פמיניסטית ובין-לאומית ועל דילמות ממסדיות ואישיות. תל אביב: רסלינג, 2015.

 

 

The issue of abortion lies at the very heart of a public-political debate which disowns women of their own bodies. This book analyzes how the feminist struggle for the right of women to have an abortion was created under a power struggle and took form according to the cultural, social, and religious climate, at the local, global and historical levels. Through a comparison of policies of various authorities around the world and the influence of the feminist movement’s activity on abortion legislation, this book presents the situation in Israel and recounts the struggles that shape the discourse and ideology underlying the existing abortion law.

Based on primary sources of the process of formulating Israel’s abortion law, and using empirical data, the author demonstrates how the presence of “woman” is muted and often absent from the discourse and therefore is not a decisive factor in shaping legislation in Israel. As a response to this omission, the author presents the stories and experiences of women as a significant focus for the examination of the efficiency of the existing law in relation to women with an unwanted pregnancy.

Is Israeli society today there is a false consciousness that assumes the Israeli abortion law is permissive, stemming from a global trend towards gender equality; In fact, the opposite is true – the abortion debate is silenced from the centers of liberal feminist discourse in Israel. This made it possible for the existing law to regulate and control female reproduction for demographic and governmental needs, while gender politics is preserved and reproduced.

 

 

 

New Article: Meshel | Bannai v Erez and the Jurisdictional Race of the Israeli and English Courts

Meshel, Tamar. “Bannai v Erez and the Jurisdictional Race of the Israeli and English Courts.” Arbitration International (early view; online first).

 

URL: http://dx.doi.org/10.1093/arbint/aiv050

 

Abstract

The ongoing case of Bannai v Erez before the Israeli and English courts provides an unfortunate example of international commercial arbitration gone astray as a result of shortsighted and aggressive decision making by domestic courts.

 

 

 

 

New Article: Simmons and Hammer, Privatization of Prisons in Israel and Beyond

Simmons, William Paul, and Leonard Hammer. “Privatization of Prisons in Israel and Beyond: A Per Se Violation of the Human Right to Dignity.” Santa Clara Journal of International Law 13.2 (2015): 487-515.

 

URL: http://digitalcommons.law.scu.edu/scujil/vol13/iss2/7

 

Abstract

Making a rather ambitious, broad-form decision, the Israeli Supreme Court (ISC) in 2009 ruled that privatization of prisons is a per se violation of human rights, in particular the rights to liberty and dignity. The Court ruled that it was not the often deleterious consequences of privatization that violated the rights to liberty and dignity, but that privatization of prisons by itself was a violation. This decision has been subject to much negative commentary and criticism with most analyses focusing on the Court’s argument on the right to liberty. Scholars that have dismissed the opinion seemed to have misread it, often grounding their counter-arguments with faulty and wildly abstract premises that misrepresent the human rights issues at stake. This article focuses on the Court’s novel argument on the right to human dignity, and especially how privatization of prisons turns inmates into commodities. While this argument may have been under-developed in the Court’s opinion, teasing out and expanding on the Court’s logic could provide an important new avenue to consider when litigating matters that pertain to the fundamental human right to dignity in other forums, both domestic and international.

The Israeli Court decision briefly mentions that similar decisions have not been made in other forums and cited a brief that suggested that “were arguments of this kind to be raised before those courts, they would not be expected to be successful.” This paper argues instead that the logic of the Israeli decision on the human rights to dignity could be successful in other jurisdictions, especially those that have strong case law on the rights of vulnerable populations and the right to human dignity, such as South Africa, the African Commission of Human and Peoples’ Rights, and the Inter-American Human Rights system. Indeed, the viable contentions based on the human right to dignity that could be raised before the Inter-American Commission on Human Rights serve as potential grounds for challenging the widespread privatization of prisons in the United States.

This paper begins with an analysis of the Israeli prison privatization case with a focus on the Court’s finding of a per se violation of the human right to dignity. The second section analyzes two previous commentaries of the Israeli case to show how even those in agreement with the Court’s decision have misread the case. This analysis provides a deeper and more nuanced reading of the Israeli Court’s logic on the human right to dignity, especially how the commodification of inmates in a private prison inherently is a violation of that right at least in the Israeli context. The third section expands upon the Court’s reasoning through a discussion of what has been referred to as “cauterization,” which involves branding a group as inferior, sealing it off from the social and political sphere, and reducing sympathy for its members. Interestingly, the same logic was also used in a recent groundbreaking mental health decision, Purohit and Moore v. Gambia, a case before the African Commission on Human and Peoples’ Rights. The fourth section teases out the key elements of the Israeli decision to show which elements would need to be present to successfully bring such a case in other jurisdictions. These elements are present not only in the Israeli context, but also in the African Commission on Human and Peoples’ Rights, the South African Constitutional Court, and the Inter-American Human Rights system.

 

 

Conference Paper: Kagan, Judicial Resistance to Detention of Asylum-Seekers in Israel and the United States

Kagan, Michael. “Limiting Deterrence: Judicial Resistance to Detention of Asylum-Seekers in Israel and the United States.” Texas International Law Journal Symposium: Immigration and Freedom of Movement, February 5, 2015.

 

URL: http://scholars.law.unlv.edu/facpub/936  For symposium program, click here.

 

Abstract

Governments have advanced the argument that asylum­-seekers may be detained in order to deter other would-­be asylum­-seekers from coming. But in recent litigation in the United States and Israel, this justification for mass detention met with significant resistance from courts. This essay looks at the way the American and Israeli courts dealt with the proposed deterrence rationale for asylum­-seeker detention. It suggests that general deterrence raises three sequential questions:

1. Is deterrence ever legitimate as a stand alone justification for depriving people of liberty?
2. If deterrence is sometimes legitimate, is it valid as a general matter in migration control, or is it limited to certain exceptional circumstances?
3. If deterrence is a legitimate goal, is there any effective proportionality limit on the measures a government may take against asylum-­seekers?

The American and Israeli courts did not answer these questions in the same way, and they did not foreclose all potential future uses of deterrence by their respective governments. But they signaled considerable judicial resistance, which may make it more difficult for governments to justify mass detention in the future.

 

 

Reviews: Reiter, Contesting Symbolic Landscape in Jerusalem

Reiter, Yitzhak. Contesting Symbolic Landscape in Jerusalem: Jewish/Islamic Conflict over the Museum of Tolerance at Mamilla Cemetery. Brighton: Sussex Academic Press, 2014.

 

 

[See abstract of earlier Hebrew version here]

 
Reviews

• Shamir, Shimon. “The Controversy of the Museum of Tolerance” Haaretz, December 25, 2011.
• Campos, Michelle U. “Review.” International Journal of Middle East Studies 47.3 (2015): 629-32.

New Articles: Book Symposium on Dotan’s Lawyering for the Rule of Law

Jerusalem Review of Legal Studies, volume 11; special section: Book Symposium on Yoav Dotan’s Lawyering for the Rule of Law: Government Lawyers and the Rise of Judicial Power in Israel

 

Table of Contents

An Introduction to Lawyering for the Rule of Law
Malcolm M. Feeley
pp. 1-5

Reflections on Cause Lawyering, Courts, and Social Change: A Comment on Lawyering for the Rule of Law
Anna-Maria Marshall
pp. 6-14

The Key Role of Government Lawyers: Discussion of Lawyering for the Rule of Law Charles R. Epp
pp. 15-19

Can Government Lawyers Save Us? A Comment on Lawyering for the Rule of Law

Gad Barzilai
pp. 20-25

Administrative Litigation and the Rule of Law in Israel and the United States: A Comment on Lawyering for the Rule of Law
Edward L. Rubin
pp. 26-41

Lawyering for ‘The Rule of Law’ or ‘Lawyering for the Court’?—A Response to Barzilai, Epp, Rubin, and Marshall
Yoav Dotan
pp. 42-50

 

 

New Article: Rosca et al, The Recent Legal Approach to New Psycho-Active Substances Regulation in Israel

Rosca, Paula, Arie Bauer, Razek Khawaled, Ety Kahana, and Keren Goldman. “The Recent Legal Approach to New Psycho-Active Substances Regulation in Israel: Does it Work?” Civil & Legal Sciences 4.2 (2015).

 
URL: http://dx.doi.org/10.4172/2169-0170.1000140

 
Abstract

Background: New Psychoactive Substances (NPS), rapidly spreading on the global drug market have become a major concern in different Countries. The drug control systems did not allow a prompt and effective response to this phenomenon, due to the slow and complicated procedures to declare a substance dangerous and illegal. Aims: To briefly describe to legal background of drug control in Israel and illustrate the characteristics of the novel legislation. Method: The Authors summarize the legal approach to NPS control in Europe and in New Zealand, the first Country to opt for a pre-market approval regime for NPS, describing the legal alternative sad opted and describe the Israeli Law for the Fight against the Phenomenon of the Use of Dangerous Substances. Findings: The new legislation succeeded to close kiosks and retailers, marketing NPS to youth and young adults in the Country. The law is unique in that it includes both an urgent temporary declaration, whose violation is penal, banning a substance as dangerous with its inclusion after 12 months into the First Schedule of the Dangerous Drugs Ordinance, and the empowerment of the police forces to search, seize and destroy the dangerous substance, constituting an administrative procedure. The law is enforced using a novel, integrated model of enforcement, providing the cooperation of different control agencies, and avoiding to criminalize the consumers. Conclusions: The effectiveness of this legislation, although promising short-term results have been registered, has still to be ascertained and more time is needed in order to perform a scientific evaluation of its results but meanwhile its impact is already noticed in the Court decisions, which make a difference between NPS and other drugs such as Cannabis in the severity of the penalties.

 

 

New Article: Doron et al, An American Friend in an Israeli Court

Doron, Israel (Issi), Manal Totry-Jubran, Guy Enosh, and Tal Regev. “An American Friend in an Israeli Court: An Empirical Perspective.” Israel Law Review 48.2 (2015): 145-64.

 

URL: http://dx.doi.org/10.1017/S0021223715000047

 

Abstract
The legal concept of ‘amicus curiae’ (friend of the court) was unknown in Israeli law until 1999 when, in the course of a well-known legal decision (the Kuzli case), the Israeli Supreme Court adopted this common law concept as part of Israeli law. Almost fifteen years have elapsed since the legal precedent set in Kuzli, during which time the criteria for participation as an amicus curiae have been established.

The aim of this study was to empirically explore and analyse the ways in which the procedural institution of amicus curiae has been used and adopted under Israeli law, and the extent to which it has influenced judicial decisions. The study has used empirical methods, including the collection of quantitative data from computerised databases in Israel concerning cases in which an application to be recognised as an amicus curiae was made.

The main findings indicate that, over the last decade, the number of applications for recognition as an amicus curiae has grown steadily. Most of these applications were made by non-governmental organisations in attempting to support private individuals engaged in legal proceedings against the state or for-profit corporations. The findings reveal that the courts have approved most of these applications.
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New Book: Navot, The Constitution of Israel: A Contextual Analysis

Navot, Suzie. The Constitution of Israel: A Contextual Analysis. Oxford: Hart, 2014.

 

 

This book presents the main features of the Israeli constitutional system and a topical discussion of Israel’s basic laws. It focuses on constitutional history and the peculiar decision to frame a constitution ‘by stages’. Following its British heritage and the lack of a formal constitution, Israel’s democracy grew for more than four decades on the principle of parliamentary supremacy. Introducing a constitutional model and the concept of judicial review of laws, the ‘constitutional revolution’ of the 1990s started a new era in Israel’s constitutional history. The book’s main themes include: constitutional principles; the legislature and the electoral system; the executive; the protection of fundamental rights and the crucial role of the Supreme Court in Israel’s constitutional discourse. It further presents Israel’s unique aspects as a Jewish and democratic state, and its ongoing search for the right balance between human rights and national security. Finally, the book offers a critical discussion of the development of Israel’s constitution and local projects aimed at enacting a single and comprehensive text.

Click here for a full Table of Contents (PDF).

New Article: Lerner, Religion and Personal Status Regulations in Israel and India

Lerner, Hanna. “Critical Junctures, Religion, and Personal Status Regulations in Israel and India.” Law & Social Inquiry 39.2 (2014): 387-415.

 

URL: http://onlinelibrary.wiley.com/doi/10.1111/lsi.12068/abstract

 

Abstract

The article aims at advancing our understanding of critical junctures in the evolution of religious/secular regulations, referring to those moments in history when one particular arrangement is adopted among several alternatives, establishing an institutional trajectory that is resistant to change in the following years. It traces the regulation of personal status laws in Israel and India, which, despite attempts by political leaders at time of independence to defer clear choices regarding the role of religious law, became generally entrenched in later decades. Based on the Israeli and Indian cases, and in contrast with common approaches, the article demonstrates how decisions made by influential political actors during the foundational stage of the state appear difficult to reform, regardless of the content of these decisions—whether they introduce a radical change or maintain existing practices—or the level of decision making—whether constitutional or ordinary parliamentary legislation.