New Article: Peled-Laskov & Shoham, A Three-Dimensional Perspective on Wrongful Convictions in Israel

Peled-Laskov, Ronit, and Efrat Shoham. “A Three-Dimensional Perspective on Wrongful Convictions in Israel: Organizational-Forensic, Psychosocial and Practical.” International Journal of Criminology and Sociology 4 (2015): 154-65.

 

URL: http://dx.doi.org/10.6000/1929-4409.2015.04.16

 

Abstract
It is difficult to find an injustice committed against the citizen by the state that is greater than the conviction of an innocent person. At this stage, it may be tentatively stated that the phenomenon is not insignificant. This theoretical article describes the various aspects of the criminal justice system associated with the undesirable outcome of wrongful convictions. The paper reviews a series of organizational and forensic aspects that could bring about a bias in investigation of the legal truth. Furthermore, a number of psychosocial aspects relating to wrongful convictions, followed by practical aspects are described and discussed. It appears that on the practical level the phenomenon cries out for changes in the law enforcement system (e.g. implementation of the US Innocence Project or the biometric databank) and the need for empirical investigation. It appears that there is still a long way to go before a full understanding can be obtained of wrongful convictions and their prevention. One way or another, the authors are of the opinion that greater academic and public importance should be assigned to the question of wrongful convictions and perhaps turn the issue of truth and falsehood in criminal law into a theoretical and research field in its own right.

 

 

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: Hacker, The Rights of the Dead through the Prism of Israeli Succession Disputes

Hacker, Daphna. “The Rights of the Dead through the Prism of Israeli Succession Disputes.” International Journal of Law in Context 11.1 (2015): 40-58.

URL: http://dx.doi.org/10.1017/S1744552314000354

Abstract

This paper aims at contributing to the evolving debate over the rights of the dead by providing it with concrete empirical socio-legal context. A pioneering study of succession disputes, conducted in Israel, exposes a gap between a prominent judicial promise to respect the wishes and guard the dignity of the deceased testator, and the actual action taking place behind this rhetoric. The findings reveal that the testator’s dignity and wishes are trampled during testamentary procedures, when demeaning allegations about his or her mental and physical competence are allowed, and personal and medical information is exposed, and when the judge approves settlements that diverge from the testator’s last will in the name of familial reconciliation, even though in most cases there are no nuclear family ties between the rival parties. These findings are discussed in the light of an original typology mapping the theoretical controversies over posthumous rights, to highlight some of the possible normative implications of the project for the law on the books and law in action related to property division after death.

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 Article: Solomon, From the Barrier to Refugee Law

Solomon, Solon. “From the Barrier to Refugee Law: National Security’s Transformation from a Balancing Right to a Background Element in the Realms of Israeli Constitutionalism.” International Journal of Human Rights 19.4 (2015): 447-64.

 

URL: http://dx.doi.org/10.1080/13642987.2015.1027063

 

Abstract

Mapping cardinal cases of the Israeli Supreme Court, the article will demonstrate how, in the Israeli constitutional experience, the concept of national security came to be transformed from a balancing right to a background element. Along these lines, the article will argue that while Israeli constitutionalism indeed awarded national security parameters a decisive role in the realms of the human rights balance judicial discourse, it equally embarked on a procedure of delineating the existence of national security as an autonomous consideration, in cases where national security exigencies ceased to be obvious in the Israeli reality. Compelling the examination of a national security debate under the human rights lens, the Israeli Supreme Court aligned its jurisprudence with that of other supreme courts as well as with the international thematic constitutionalism model, aspiring to interpret the different fields of laws and various provisions under the concept of the right to dignity.

 
 
 
 

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 Book: LeVine and Mossberg, eds. One Land, Two States

LeVine, Mark and Mathias Mossberg, eds. One Land, Two States. Israel and Palestine as Parallel States. Berkeley: University of California Press, 2014.

 

 

Abstract

One Land, Two States imagines a new vision for Israel and Palestine in a situation where the peace process has failed to deliver an end of conflict. “If the land cannot be shared by geographical division, and if a one-state solution remains unacceptable,” the book asks, “can the land be shared in some other way?”

Leading Palestinian and Israeli experts along with international diplomats and scholars answer this timely question by examining a scenario with two parallel state structures, both covering the whole territory between the Mediterranean and the Jordan River, allowing for shared rather than competing claims of sovereignty. Such a political architecture would radically transform the nature and stakes of the Israel-Palestine conflict, open up for Israelis to remain in the West Bank and maintain their security position, enable Palestinians to settle in all of historic Palestine, and transform Jerusalem into a capital for both of full equality and independence—all without disturbing the demographic balance of each state. Exploring themes of security, resistance, diaspora, globalism, and religion, as well as forms of political and economic power that are not dependent on claims of exclusive territorial sovereignty, this pioneering book offers new ideas for the resolution of conflicts worldwide.

Table of Contents

List of Illustrations
Foreword: Two States on One Land—Parallel States as an Option for Israel and Palestine
Álvaro de Soto

Preface
Mathias Mossberg and Mark LeVine

1. One Land—Two States? An Introduction to the Parallel States Concept
Mathias Mossberg

2. Can Sovereignty Be Divided?
Jens Bartelson

3. Parallel Sovereignty: Dividing and Sharing Core State Functions
Peter Wallensteen

4. Security Strategy for the Parallel States Project: An Israeli Perspective
Nimrod Hurvitz and Dror Zeevi

5. Palestinian National Security
Hussein Agha and Ahmad Samih Khalidi

6. An Israel-Palestine Parallel States Economy by 235
Raja Khalidi

7. Economic Considerations in Implementing a Parallel States Structure
Raphael Bar-El

8. Parallel Sovereignty in Practice: Judicial Dimensions of a Parallel States Structure
Various authors, compiled by Mathias Mossberg

9. Religion in the Palestinian-Israeli Conflict: From Obstacle to Peace to Force for Reconciliation?
Mark LeVine and Liam O’Mara IV

10. The Necessity for Thinking outside the Box
Hiba Husseini

11. Parallel Lives, Parallel States: Imagining a Different Future
Eyal Megged

Contributors
Index

 

Cite: Kedar, Democracy and Judicial Autonomy in Israel’s Early Years

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Kedar, Nir. "Democracy and Judicial Autonomy in Israel’s Early Years." Israel Studies 15,1 (2010): 25-46.

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Abstract

The article investigates the question of judicial autonomy in the State of Israel during the first five years of independence. It examines to what extent the government and the Knesset were involved in the procedure of appointing Supreme Court judges, and then discusses the involvement of these authorities in the courts’ ongoing work. An examination of the full range of evidence from the period leads to the conclusion that, since the establishment of Israel, there were no unsuitable attempts to influence judges to issue unfair rulings or to restrict their autonomy in other ways. The mistaken notion that judges in the early years of Israel were not respected or appreciated and that their autonomy was in practice flawed should therefore be abandoned, acknowledging the efforts of the first Israelis to reconcile the complex principles of democracy and the rule of law.

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URL: http://inscribe.iupress.org/doi/abs/10.2979/ISR.2010.15.1.25

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Keywords: Israel: Law, History, Separation of Powers / trias politica / הפרדת רשויות, Jurisprudence, Judges, ניר קידר