IVF Battles: Legal Categories and Comparative Tales

Coupled with modern reproductive technologies, the ancient desire for parenthood has led to novel legal challenges. This essay discusses landmark cases addressing those challenges. At the outset, it distinguishes between two litigation paradigms in this area—termed “horizontal” and “vertical.” Horizontal controversies involve private parties who have different aspirations regarding a joint parenthood project (e.g., between two partners who began an IVF procedure and later disagree whether to complete the process). In contrast, vertical controversies concern clashes between an individual (or individuals) and the state, such as when the state or one of its authorities does not allow the individual to move forward with technologies that may lead to parenthood (e.g., new surrogacy procedures), though all affected individuals consent. The essay then focuses on horizontal litigation, and examines the ways in which various legal systems draw on, and sometimes adjust to the particular circumstances of the case, traditional concepts such as contract, reliance, property, and more to resolve such disputes

Can Equality Survive Exceptions?

The meaning of the exception vis-à-vis the general rule is primarily discussed in the context of emergency powers (following Cart Schmitt and Giorgio Agamben). But the complicated relationship between the norm and its exceptions is also relevant to other legal contexts. This Commentary is dedicated to the following question: What are the implications of considering equality a fundamental legal principle while recognizing exceptions to its application? More concretely, how does the existence of exceptions influence the understanding and viability of equality as the norm

Can Equality Survive Exceptions?

The meaning of the exception vis-à-vis the general rule is primarily discussed in the context of emergency powers (following Cart Schmitt and Giorgio Agamben). But the complicated relationship between the norm and its exceptions is also relevant to other legal contexts. This Commentary is dedicated to the following question: What are the implications of considering equality a fundamental legal principle while recognizing exceptions to its application? More concretely, how does the existence of exceptions influence the understanding and viability of equality as the norm

Secret Evidence and the Due Process of Terrorist Detentions

Courts across many common law democracies have been wrestling with a shared predicament: proving cases against suspected terrorists in detention hearings requires governments to protect sensitive classified information about intelligence sources and methods, but withholding evidence from suspects threatens fairness and contradicts a basic tenet of adversarial process. This Article examines several models for resolving this problem, including the special advocate model employed by Britain and Canada, and the \u27Judicial management model employed in Israel. This analysis shows how the very different approaches adopted even among democracies sharing common legal foundations reflect varying understandings of \u27fundamental fairness or due process, and their effectiveness in each system depends on the special institutional features of each national court system. This Article examines the secret evidence dilemma in a manner relevant to forseeable reforms in the United States, as courts and Congress wrestle with questions left open by Boumediene v. Bush

Privatisation, outsourcing and employment relations in Israel

This chapter focuses on the effect that outsourcing, as a subset of privatization, has had on employment relations in Israel. In particular, chapter highlights the adverse, and perhaps counter-intuitive, effects that the law has had on the plight of Israeli contract workers. Israeli governmental agencies and local councils have turned to outsourcing as a means to circumventing post limits and due to the Ministry of Finance’s pressures to increase ‘flexibility’ in the civil service. Intriguingly, paradoxically, and tragically, the law’s effort to regulate this growing phenomenon has led employers resorting to tactics which have redefined agency workers (teachers, nurses, etc) as workers subject to the “outsourcing of services” (teaching, nursing, etc). This has moved such workers into a legal void, depriving them of rights and protection

Panel III: Transnational Jurisprudence: Judicial Conversations and Comparative Law: The Case of Non-Hegemonic Countries

Prof. Barak-Erez discusses comparative and transnational law

Battles of Reproductive Technologies: Comparative Tales

Justice Daphne Barak-Erez, Justice on the Supreme Court of Israel, delivers the Annual Bernstein Lecture in Comparative Law titled Battles of Reproductive Technologies: Comparative Tales. The lecture addresses landmark cases on controversies in the area of IVF law, using examples and models from several jurisdictions, thus exploring the potential contribution of comparative analysis to this area of law. More specifically, the analysis distinguishes between two types of litigation in this field - horizontal (between two private parties) and vertical (between individuals and the State) - mainly focusing on horizontal litigation and pointing to the judicial approaches used in this context, as well as to the relatively modest contribution of legislation to this area of law. Introductions: Dean David F. Levi, Professor Ralf Michaels