LAWYERING FOR THE RULE OF LAW Lawyering for the Rule of Law introduces a new model of government lawyering in which government lawyers function as an ancillary mechanism that enables the court to expand its influence on policy-making within the political branches by forming out-of-court settlements. It discusses the centrality of government lawyers with regard to judicial mobilization and the enforcement of social reforms through adjudication, and sheds light on particular functions of government lawyers as adjudicators and facilitators of institutional arrangements. It also discusses the ethical and professional dilemmas of government lawyers in judicial review and the relationship between lawyers professional morality and outcomes in litigation. YOAV DOTAN is Edwin A. Goodman Professor of Law and former Dean of the Faculty of Law at the Hebrew University of Jerusalem.
CAMBRIDGE STUDIES IN CONSTITUTIONAL LAW The aim of this series is to produce leading monographs in constitutional law. All areas of constitutional law and public law fall within the ambit of the series, including human rights and civil liberties law, administrative law, as well as constitutional theory and the history of constitutional law. A wide variety of scholarly approaches is encouraged, with the governing criterion being simply that the work is of interest to an international audience. Thus, works concerned with only one jurisdiction will be included in the series as appropriate, while, at the same time, the series will include works which are explicitly comparative or theoretical or both. The series editors likewise welcome proposals that work at the intersection of constitutional and international law, or that seek to bridge the gaps between civil law systems, the US, and the common law jurisdictions of the Commonwealth. S e r ie s E d itor s David Dyzenhaus Professor of Law and Philosophy, University of Toronto, Canada Ad am Tom k ins John Millar Professor of Public Law, University of Glasgow, UK Editorial Advisory Board T. R. S. Allan Cambridge, UK D ami an C ha lmers LSE, UK Sujit Choudhry Toronto, C anad a Monica Claes Maastricht, Netherlands David Cole Georgetown, USA K. D. Ewing King s College London, UK David Feldman Cambridge, UK Cora Hoexter Witwatersrand, South Africa Christoph Moellers Goettingen, Germany Adrienne Stone, Melbourne, Australia Adrian Vermeule, Harvard, USA
Books in the series: Lawyering for the Rule of Law: Government Lawyers and the Rise of Judicial Power in Israel Yo av D ot an Balancing Constitutional Rights: The Origins and Meanings of Postwar Legal Discourse Jacco Bomhoff Judges on Trial: The Independence and Accountability of the English Judiciary Sh i mon Shetreet and Sophie Turenne Proportionality and Constitutional Culture Moshe Cohen-Eliya and Iddo Porat The Politics of Principle, The First South African Constitutional Court, 1995 2005 Theunis Roux The New Commonwealth Model of Constitutionalism, Theory and Practice Stephen Gardbaum Searching for the State in British Legal Thought, Competing Conceptions of the Public Sphere Janet McL e an Judging Social Rights Je ff Ki ng Proportionality, Constitutional Rights and their Limitations A haron B ar a k Parliamentary Sovereignty, Contemporary Debates Jeff rey Goldsworthy
LAWYERING FOR THE RULE OF LAW Government Lawyers and the Rise of Judicial Power in Israel Y O AV D O T A N
University Printing House, Cambridge CB2 8BS, United Kingdom Published in the United States of America by Cambridge University Press, New York Cambridge University Press is part of the University of Cambridge. It furthers the University s mission by disseminating knowledge in the pursuit of education, learning and research at the highest international levels of excellence. w w w. c a m br i d g e. o r g Information on this title: /9781107625907 Yo av D o t a n 2 014 Th is publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2014 Printed in the United Kingdom by CPI Group Ltd, Croydon CR0 4YY A catalogue record for this publication is available from the British Library Library of Congress Cataloguing in Publication data Dotan, Yoav. Lawyering for the rule of law : government lawyers and the rise of judicial power in Israel /. pages cm. (Cambridge studies in constitutional law; 9) ISBN 978-1-107-03899-8 (hardback) ISBN 978-1-107-62590-7 (paperback) 1. Political questions and judicial power Israel. 2. Government attorneys Israel. I. Title. KMK2244.D68 2013 347.5694 dc23 2013023923 ISBN 978-1-107-03899-8 Hardback ISBN 978-1-107-62590-7 Paperback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.
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C O N T E N T S Ac kno wl e d g m e nt s Li s t of figures xi Li s t of t a bl e s xii page x I nt ro duc t ion : The government s lawyer 1 1 The Israeli legal system and the rise of judicial activism in the High Court of Justice 14 2 The High Court of Justice Department (HCJD): overview and history 51 3 L it igat i ng for t he gover n ment 87 4 The dilemma of serving two masters 119 5 Sorting things out: government lawyers in transformative litigation 147 6 The government lawyer as adjudicator: pre-petitions and the HCJD 172 C onc lu sion 18 8 Table of cases 191 Bibliog ra phy 195 Index 2 0 8 ix
A C K N O W L E D G M E N T S Th is book is a product of many years of research in the archives of the Israeli Supreme Court and the Ministry of Justice. Throughout the years and the various stages of the project I have benefited from the dedicated help of my research assistants whom are too numerous to be indicated by names. I am also thankful to the Ministry of Justice for allowing me access to their files and to the many lawyers and judges who agreed to be interviewed for this project. During the stage of writing the text I have benefited immensely from the assistance of Moshe Ostrovsky and Shira Gartenberg. I am also deeply indebted to Gali Aviv Weisman for her invaluable assistance as a statistical advisor and to Diana Rubanenko for her dedicated assistance as language editor. x
F I G U R E S 1.1 HCJ Files and overall caseload in the Supreme Court 1970 2010. page 2 5 1.2 Costs imposed by the HCJ, by petitioner s identity 1970s and 1990s. 31 1. 3 Th e proportion of group petitions among all petitions to HCJ (percent) 1977 1995. 40 2.1 Th e Ministry of Justice. 53 2. 2 Th e Office of the Attorney General (OAG). 66 3.1 Outcome distribution in the 1970s and 1990s. 94 3. 2 S e t t le me nt r at e s 19 70 s a nd 19 9 0 s. 9 9 3.3 Success rates and settlement rates: 1970s and 1990s. 99 3.4 Conditional orders issued in the 1970s and 1990s. 103 3.5 Success rates of petitions submitted against the state and municipalities during the 1990s. 108 3.6 Success and failure in court and through settlements for petitions submitted against the state and against municipalities. 109 3.7 Rate of settlements: state and municipalities. 109 3.8 Conditional orders issued against the state and municipalities. 112 4.1 Outcome distribution for high and low stature lawyers. 143 4. 2 Ty p e of pr o c e e d i n g d i s t r i but ion for h i g h a nd low stature lawyers. 143 4. 3 D i s t r i but ion of c ond it ion a l ord e r s a mon g high and low stature lawyers. 144 6.1 Nu m b e r s of pre -p e t it ion s 19 9 0 19 9 7. 176 6. 2 O ut c ome s of pre -p e t it ion s 19 9 0 19 9 7. 17 7 6.3 Pre-petitions 1990 1997 by processing time. 181 6.4 Pre-petitions 1990 1997 by organizational affiliation and representation. 185 xi
T A B L E S 3.1 D e s c r ip t i ve s t at i s t ic s of v a r i a ble s. page 91 3. 2 Su m m a r y of d at a on s uc c e s s r at e s ( bi v a r i at e a n a l y s i s). 95 3. 3 L o g i s t ic re g re s s ion c o e ffi cients for predicting success in litigation. 96 3. 4 Su m m a r y of d at a on s e t t le me nt r at e s ( bi v a r i at e a n a l y s i s). 9 8 3. 5 L o g i s t ic re g re s s ion c o e ffi cients for predicting the likelihood for disposition of the case by court decision. 100 3. 6 L o g i s t ic re g re s s ion c o e ffi cients for predicting the issuance of conditional orders during litigation. 102 3.7 Petitions against the state and local municipalities descriptive statistics of variables. 106 3. 8 L o g i s t ic re g re s s ion c o e ffi cients for predicting success in litigation. 107 3.9 L o g i s t ic re g re s s ion c o e ffi cients for predicting the likelihood for disposition of the case by court decision. 110 3.10 L o g i s t ic re g re s s ion c o e ffi cients for predicting the issuing of a conditional order. 113 4.1 D e s c r ip t i ve s t at i s t ic s of v a r i a ble s. 141 xii