Parties in Israel: Between Law and Politics

The decline in prestige and influence of the political parties in Israel, particularly the larger parties, has become a source of distress for many in Israel. Similarly, in the United States, where the significance of parties is also recognized, many have shown concern for weakening of the dominant political parties. In the American system where politics are ruled by two strong national parties, one of the most common concerns is aimed at the potential possible damage to smaller parties and independent candidates. But, in Israeli, the nature of politics is becoming increasingly sectoral, personal, superficial and populist. As is often characteristic of public discourse in Israel, many have reacted by holding the legal system responsible for this phenomenon. This essay examines this contention by comparing Israeli and American law. On a more general level, it considers the complex relationships between the law of a given country and the style and quality of its politics

The Relevance of the Judicial Activism vs. Judicial Restraint Discourse

This article was presented at the 2011 Symposium honoring Aharon Barak

The Judicial Discretion of Justice Aharon Barak

This paper was presented at the 2011 Legal Scholarship Symposium

Views on Prostitution

The Essay argues that both law and art represent deeply-rooted cultural ambivalences and ethical incoherence towards prostitution. The choice of Picasso\u27s Les Demoiselles d’Avignon as representative of this tension stems from the sui-generis status of the painting in the history of modern art—as an avant-garde which later became a canon. Of the various views evoked by the painting, four are especially prominent: a moralizing, a normalizing, a victimizing and a patheticizing view. The examination of various Western prostitution laws shows that each of the laws simultaneously expresses different perceptions and ideologies about prostitution, much like the views evoked by the painting. It appears that law is unable to avoid the cultural incongruity linked to prostitution, which is apparent even in countries that allegedly declare unambiguous standing towards it

The Roberts Court, State Courts, and State Constitutions: Judicial Role Shopping

In this Article we reveal a dual dilemma, both material and institutional, that the Supreme Court in its current composition faces when reviewing liberal state court decisions based on the state constitution. The Article further describes substantive and procedural tactics that the Court adopts to address this dilemma, and illustrates the arguments by analyzing a number of recent Supreme Court decisions. The two dilemmas, the combination of which serve as a “power multiplier,” of sorts, have arisen following the last three appointments to the Supreme Court, which resulted in a solid majority of conservative Justices nominated by Republican presidents. One dilemma, material in nature, that the Roberts Court faces, is between the federalist component of the conservative legal worldview, that requires federal courts to defer to state courts’ rulings based on state constitutions, and its non-liberal component, based on conservative values. The second dilemma, institutional in nature, stems from the Roberts Court’s legitimacy deficit among substantial sections of the American public, mainly supporters of the Democratic Party, which has increased as a result of the three recent appointments. The legitimacy deficit may make it difficult for conservative Justices to fully implement their judicial philosophy. We further argue that the emerging ambivalence of the Roberts Court, which is a consequence of the combination of these two dilemmas, is manifested, in addition to general avoidance doctrines and the specific state ground doctrine, also in two types of judicial tactics, substantive (such as seeking judicial compromise in order to reach a broad common denominator among the Justices) and procedural (such as encouraging other branches to carry out their obligations until the dispute is reasonably resolved), that the Court adopts in coping with liberal state court decisions based on the state constitution. In the last Part of the Article we illustrate our contentions by analyzing three recent Supreme Court decisions: Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018), Espinoza v. Montana Department of Revenue (2020) following Trinity Lutheran Church of Columbia, Inc. v. Comer (2017), and Republican Party of Pennsylvania v. Boockvar (2020)

The Supreme Court as a Babysitter: Modeling Zubik v. Burwell and Trump v. International Refugee Assistance Project Rights

Article published in the Michigan State Law Review