Volume 10

Law & Social Change

Abstracts:

The Story of Danilowitz:
Employment Equality Leading to Same-Sex Couples Recognition

Aeyal Gross

The HCJ 1994 El Al v. Danilowitz ruling was the first Supreme Court decision addressing
discrimination on grounds of sexual orientation. Although this ruling relied mainly on a
ban on employment discrimination, it paved the way for a general recognition of both
the right to equality on grounds of sexual orientation and the rights of same-sex couples
in Israel. It took the gay subject out of the legal closet, and its effect went far beyond
the specific issue it considered: the rights to flight tickets of El-Al employees’ same-sex
partners.
This article focuses on the story behind the ruling and on the question of who drove
the processes that led to the revolutionary decision (and in what way). It shows how the
result was influenced not only by the decisions of the various parties but also by other
factors, some random and unexpected. Unfortunate circumstances (the death of a judge)
as well as fortunate ones (a judge’s promotion) delayed the ruling. Although Danilowitz
filed his suit before the enactment of the Basic Law: Human Dignity and Liberty and
before the amendment whereby the Employment (Equal Opportunities) Law came to
include a ban on discrimination on grounds of sexual preference, the Regional Labor
Court ruled on it after these amendments, which played a crucial role in the final result.
The article also presents the drama that took place in the Supreme Court: the case came
before it after two instances had ruled in favor of Danilowitz, and a new Supreme Court
judge, Justice Dalia Dorner, found herself the swing vote between liberal Justice Aharon
Barak and conservative Justice Yaakov Kedmi. As she formulated her ruling, Justice
Dorner discovered Michel Foucault, who is cited in the decision, and her own voice as
a judge identified with human rights. The article also points to the “Danilowitz effect”
that followed the ruling—a process in which the legal recognition of same-sex couples
increasingly expanded and discrimination on grounds of sexual orientation was banned,
leading lower instances to a broader reading of the ruling’s contents.
Relying on interviews with Danilowitz himself, lawyers, interns, and judges who
were involved in the affair, as well as on the study of written documents, the article tells a
story about individuals who focused only on a specific right but set in motion far-reaching
social processes; about the formal legal answers given by El-Al lawyers as opposed to
the broad conception of the values of equality endorsed by some of the judges; and about
the mixture of planning and chance in the case. It’s a story about some people who came
out of the closet and others who remained in it, and about the vast potential influence of
legislative amendments and litigation.

The Story of Alice Miller:
Behind the Scenes of the Case for Gender Equality in the
Israeli Air Force

Neta Ziv

The participation of women in combat units remains a controversial topic in Israel, and
in many ways reflects the divisive stances on the role of women in the public sphere.
The 1994 Israeli Supreme Court decision – Alice Miller versus the Minister of Defense
– in which the court held that women cannot be excluded from the Israeli Air Force’s
prestigious pilots course, is a good starting point to think about women in Israeli society
and polity. In this article I take a look into the past, the beginning of the 1990s when I
represented Alice Miller in her petition to the Israeli Supreme Court. The purpose of this
endeavor is to provide an account of what went on behind the scenes of the ruling. I share
with the readers the dilemmas and strategies that accompanied the filing of the petition,
the approach underlying the court proceedings and tactics, as well as the circumstances
of the court hearing and the ruling. The article also lays out my thoughts about the Miller
case’s influence on subsequent litigation on the rights of women in Israel.

Full article is available in Hebrew here

The Story of Goren:
A Coalesced Effort

Arianne Renan Barzilay and Vardit Avidan

The Goren case has become a symbol of the fight for gender equality, in particular the
quest for gender equality in pay. In this article we look “behind the scenes” of the case,
to the perspectives of the petitioner, Orit Goren, and the attorneys involved in creating
the legal precedent, to reveal how the ruling came about and to understand what this
story about legal and social change can teach us. The story reveals that what underlay
the precedential ruling was the ability of the concerned parties to conduct a coalesced
legal effort – one that is founded on valent cooperation between a private petitioner and
her attorneys, civil society and the state itself. It is the story of a rare moment when
private-sector attorneys, the state, and civil society banded together, and of a petitioner
that understood that the personal is political.

Full article is available in Hebrew here

The Story of the Campaign Against
Sex Segregation in Israeli Academia:
Realizing, Theorizing, Mobilizing

Yofi Tirosh

Since 2012, Israel’s Council of Higher Education has been encouraging and subsidizing
academic programs catering to the ultra-Orthodox community. This important goal is
seen as essential for increasing labor market participation, especially of ultra-Orthodox
men. Sex segregation in these programs has been viewed from the outset as essential to
their success. This article describes, from a personal perspective, the campaign against the
introduction and expansion of segregation between men and women in Israel’s academia,
a sector that has a central role in shaping the public sphere. Since sex segregation was
introduced into academia without any public or academic debate regarding its necessity,
characteristics, or costs, the author’s journey began with realizing that such segregated
programs actually exist. The second stage was mapping and theorizing the many actors,
perspectives, and principled and instrumental arguments surrounding the matter. The third
and present stage involves leading a long and complex process of mobilizing change, or,
more accurately, thwarting the dramatic institutionalization of segregation that is being
supported by hefty budgets, regulatory power, and an arsenal of arguments from market
utility to multiculturalism – arguments that are no doubt considerable in themselves, but
that neither each on its own nor together have the power to trump equality.
This article is being written while a petition to Israel’s High Court of Justice is
pending, challenging the constitutionality and legality of sex segregation in academia.
Although the campaign involves operating in multiple dimensions and arenas, it is the
litigation venue that draws the most attention, so its depiction and comprehension are
important. The centrality of legal proceedings is not only due to the fact that this article is
being published in a legal journal and the author and initiator of the campaign is legally
trained, but because the legal process has public visibility and the power to bring the
various stakeholders to the table and make them hone the justifications for their policy,
gather the data necessary for assessing it, and answer the difficult questions. The article
therefore dedicates a reflexive discussion to the advantages and shortcomings of turning
to the Court, and to the relationship between litigation and actions undertaken in arenas
that are just as important: for example, dialogue with ultra-Orthodox women, arousing
interest in the media and in social media, academic conferences, freedom of information
proceedings, hindering legislative proposals seeking to expand segregation, prompting
faculty to take a public stance, enlisting pro-bono legal representation, and engaging
human rights organizations in supporting the cause.

Full article is available in Hebrew here

The Story of Israel’s Supreme Court Ruling on Dignified Existence:
Dignity does not Stop at the Doorstep of Poverty

Sharon Abraham-Weiss, Avishai Benish

This article presents a retrospective view of the 2003 “Dignified Existence” petitions
submitted to Israel’s High Court of Justice. It tells the story of these petitions as they
argued against sharp cuts made by the government to the social security safety net. The
decisions handed down in these petitions in 2005 have since become landmarks in Israeli
law as regards a constitutional right to a dignified existence.
The article offers our point of view, as attorneys at two peace-and-justice NGOs
(Commitment to Peace and Social Justice and The Association for Civil Rights in Israel)
representing the petitioners; of the process both in the public sphere and behind the
scenes: from the decision to turn to the court, through preparing and arguing the petitions,
up to the verdict by the court. We discuss the legal, public and personal dilemmas
that presented themselves as we worked through the process: choosing the “perfect
petitioners,” cooperation with academic experts and social activists, the role of judicial
activism in framing the petitions, and the gulf between the petitioners and the justices as
human beings. We conclude the article with an attempt to map the relationships between
jurisprudence and social activism, and to assess the viability of the courts as a means for
social change in the economic realm.

Full article is available in Hebrew here

The Story of Prison Privatization in Israel:
The Judicial Restraint Paradox

Efy Michaely

This article examines the circumstances that led to the ruling of the Israeli High Court
of Justice on the legal question framed through the case of prison privatization in Israel
about four and a half years after the petition was filed, and it describes the actions of the
various parties that led to the result in which the State of Israel had to compensate the
company that won the tender for building and managing a private prison in Israel. The
article presents the “judicial restraint paradox,” which arises where restraint on the part
of the court at an earlier stage is misinterpreted by government officials and other parties
and leads to judicial intervention at a later stage that could be perceived as cross-border.
The article includes several instances of this paradox and points out tools that may help
to limit “judicial restraint paradox” cases in the future.

Full article is available in Hebrew here

The Story of “The Prevention of Infiltration Law”:
Can Two Walk Together? Lawyers and Asylum Seekers in the
Struggle for Freedom

Anat Ben Dor and Efrat Ben-Ze’ev

This article explores the “small” tales that framed an important affair – the Supreme
Court litigation regarding the constitutionality of the three amendments to the Prevention
of Infiltration Law. We examine how asylum seekers and lawyers, who partnered in this
struggle, comprehended the affair. Did they perceive it in a similar manner? Our main
research tool was interviews conducted with the asylum seekers’ leaders and with the
lawyers who filed the petitions. We discovered significant disparities in the perceptions of
the asylum seekers and lawyers, respectively. Asylum seekers, for example, were hesitant
to trust lawyers and the legal system. Some described the litigation as a “game” played
between the lawyers and the government, in which they were the losers. The lawyers on
their part found it difficult to convey and explain the rules and limitations of the legal
process to the asylum seekers.
We found that two parallel struggles were conducted simultaneously: The lawyers
focused on the legal channel, while the asylum seekers embarked on an independent
public-political struggle. They initiated protests that included sit-ins within the Holot
detention facility, marches to the Knesset and to the Egyptian border, and demonstrations
in the center of Tel Aviv. The two groups seemed to be operating within different
spaces, using different “tools” and motivated by somewhat different agendas. They also
addressed different audiences: while the lawyers focused on the court and, via the legal
process, on the Israeli public; the asylum seekers addressed other asylum seekers, in
Israel and abroad, as well as human rights organizations and a global audience. Although
the two groups operated in parallel spaces, there were reciprocal influences. In fact, while
agendas may clash, in this case the dynamic was one of convergence whereby the efforts
of the two groups complemented each other.

Full article is available in Hebrew here

The Story of Kenig v. Cohen:
Family Tragedy, Legal Tragedy

Nili Cohen

Kenig v. Cohen is arguably the most dramatic case in Israeli private law: a woman committed
suicide by jumping from the top floor of a hotel with her daughter, leaving in the hotel room
some notes complaining about her husband and asking that he be disinherited.
The special status of the case stems from the combination of a very tragic story – a family
tragedy – and a dramatic legal dilemma. It educes the tension between law and morality, the
legislature and the judiciary, form and substance, truth and certainty. In the renewed scrutiny
of the case I refer to this concatenation of tensions reflecting the eternal struggle between
private justice, claimed by the individual, and public or collective justice, emanating from
formal legal requirements.
The case of Kenig v. Cohen dealt with the issue whether a husband is entitled to inherit
his deceased wife who while yet alive had asked that he be prevented from receiving his share
due to his misconduct towards her. Under the concept of individual justice of the law of wills,
which focuses on the will of the deceased, the husband could not inherit his wife. But public
justice demands certain formal requirements for a will to be valid, which in this specific case
were not met. The adherence to form that serves general collective justice by securing the
values of stability and certainty stands in sharp contrast to substance, which might well serve
individual justice.
The other route presented here, which exposes the novelty of the discussion, deals with
the rule that prevents a beneficiary who intentionally caused the death of his testator from
receiving his share in the estate. In the case of Kenig v. Cohen no mention was made of the fact
that the family of the deceased made an attempt to disinherit the husband following the latter
rule. This was revealed through some newspaper articles that covered the case, from which it
emerged that the family had filed a complaint to the police regarding the responsibility of the
husband for his wife’s death. Eventually this route was abandoned by the family who decided
to pursue only the path of the validity of the wife’s will.
The present account refers to the tragic factual story, to some historical, literary and legal
parallels, and to the legal problem of the rule regarding the ‘undeserving heir.’ Private justice
would lead to a decision whereby even if the husband indirectly caused his wife’s death or also
mistreated her, he would not be allowed to inherit. Flexible application of such a rule might
serve individual justice. Yet in order to prevent destructive interference in the intimate sphere,
public justice would allow for such a result only if definite prerequisites are met in order to
establish stability and certainty in the law of wills.
In both contexts – the validity of wills and the rule of the undeserving heir – law was
confronted by the same tension, between individual justice and public justice, and could not
bridge the tragic gap between the two. With regard to this tension, Israeli law has undergone
fluctuations, adhering in the first stage to formality and general justice, followed by a second
stage where judicial discretion has been too widely exercised, so now a more proper balance
must be found between the two facets of justice. The dramatic legal dilemma in the case of
Kenig v. Cohen, which can be characterized as a legal tragedy, reflects the need to make a
decision in a hard case of a family tragedy, in which the two types of justice are diametrically
opposed.

Full article is available in Hebrew here

The Story of Ata v. Schwartz:
Stories of Israeli Liberalism

David Schorr

The ruling of the Israeli Supreme Court in Ata v. Schwartz is best known today as
an exposition by an Israeli court of possible remedies in cases of nuisance, suggested
by Calabresi and Melamed’s seminal article on property rules, liability rules, and
inalienability. Yet the case’s historical importance extends beyond the boundaries of this
narrow issue: The defendant was a legendary company, a symbol of Zionist collectivism,
and the lawsuit attacking it was viewed as a sort of selfish provocation against these
values. Moreover, the Court’s decision, which celebrated individual rights and criticized
the economic analysis of law, hid an important element of the decision – the importation of
economic analysis into Israeli law, in a discussion that had no parallel in the contemporary
world. These aspects make Ata v. Schwartz an important episode not only in Israeli tort
law, but in the chronicles of the various strands of Israeli liberalism in general, legal
liberalism in particular.

Full article is available in Hebrew here

The Story of Shillo v. Ratzkovsky:
How and Why the Good Faith Principle was (accidentally)
Implanted into Israeli Civil Procedure

Issi Rozen-Zvi

Presently, good faith is a fundamental principle of Israeli civil procedure, deeply ingrained
into its fabric. However, a brief glance at the history of civil procedure reveals that this
principle is a relative newcomer to the world of procedure, appearing for the first time in
an obiter dictum delivered by Aharon Barak in Shillo v. Ratzkovsky in the early 1980s.
Until then, the good faith principle was considered incongruous in the adversarial civil
system reigning at the time.
Justice Barak’s obiter dictum is puzzling for various reasons: First, the good faith
principle is unbefitting the facts of the case. Justice Barak applied the principle in order to
invalidate a seemingly legitimate demand made by an insurance company (the defendant)
on an insured who lived in Jerusalem (the plaintiff), to be examined by a doctor in Tel
Aviv, promising to pay all his travel expenses. Second, the good faith principle was
unnecessary, since the relevant procedural rule contained a standard of its own which
was sufficient for the resolution of the case. Third, the obiter dictum is incompatible with
the time-period in which it was introduced. In the early 1980s, the civil process was still
very adversarial in nature, allowing the parties to employ manipulative tactics, including
the assertion of untruthful facts. How can this be reconciled with the broad good faith
principle proposed by Justice Barak? Fourth, the common conviction at the time was
that civil procedure should be made up of rules rather than standards, while good faith is
the ultimate standard. Lastly, Justice Barak, throughout his long tenure on the Supreme
Court, showed no interest in civil procedure, making his opinion in Shillo an oddity. This
Article, which was born out of this puzzle, inquires into the reasons why the good faith
principle was introduced into civil procedure when it was, distilling from the solution
of the mystery broader theoretical insights about law generally and procedural law in
particular.

Full article is available in Hebrew here

The Story of Yissacharov:
Yissacharov in Action – On the Merits of the Israeli Flexible
Exclusionary Rule and its Contribution to the Protection of
Individual Rights

Yoav Sapir and Guy Rubinstein

The Israeli version of the exclusionary rule, developed by the Supreme Court’s
Yissacharov ruling, has been criticized harshly. The major critique is that it is a weak
instrument that does not properly protect individual rights, due to the fact that it grants
discretion to the courts over the admissibility of illegally obtained evidence. According to
the critics, an ideal protection of individual rights would be achieved by the adoption of a
rigid exclusionary rule, as in the United States, according to which courts do not have any
discretion to circumvent the exclusion of illegally obtained evidence. In this article we
argue, based on the legal theoretical literature and the practical experience of American
law, that contrary to the initial intuition, the adoption of a rigid exclusionary rule carries
the risk of harming the rights of suspects and defendants and narrowing the scope of
individual rights. In this context, we highlight the potential advantages of a flexible
discretionary exclusionary rule and show that these potential advantages have indeed
been realized as the caselaw concerning the application of Yissacharov has developed.
We then discuss the contribution of Yissacharov that in our view is the most significant
to the protection of individual rights in Israel: the expeditious and broad development
and regulation of numerous areas of criminal procedure in Israel that had been neglected
prior to Yissacharov, as well as the development of important caselaw which defines in a
clearer fashion the balance of power between law enforcement and individuals in society
and which draws the line for law enforcement between the legal and the illegal.

Full article is available in Hebrew here

The Story of Baranes:
The Influence of the Media and Public Pressure on the Acquittal of
Amos Baranes

Gili Levontin

Amos Baranes was convicted in 1976 of the murder of Rachel Heller and sentenced to
life imprisonment. Baranes confessed to the act, but retracted his confession and claimed
that it had been extracted from him under duress and threats made by his interrogators.
These arguments were rejected by the court and his appeal to the Supreme Court was also
rejected, the Court stating that his confession was true and his claims were false.
From the time of his conviction and imprisonment, Baranes consistently insisted on
his innocence and acted intensively, both on his own and through a group of supporters,
in the media and in the public arena. Baranes filed four motions for a retrial, three of
which were rejected, while the latter was finally accepted by the Supreme Court, which
acquitted Baranes, thirty years after his conviction.
This article reviews the public and media activity that took place alongside the legal
proceedings, and claims that this activity affected the legal procedure and ultimately led
to his acquittal. Part I lays out the normative background to the relationship between
media and law and presents the advantages and disadvantages of media coverage of legal
proceedings. It also explains the grounds for the assumption that judges may be affected
by media coverage of a legal case and therefore coverage aimed at influencing a pending
proceeding is improper. Part II reviews the sequence of events, from the investigation to
the acquittal, and the public activity that accompanied it, showing how at every stage the
media influenced public opinion, various parties and, ultimately, the legal outcome.
Part III, which concludes, discusses the legitimacy of the public activity carried out by
various figures, and shows how the Baranes case demonstrates the disadvantages inherent
in media coverage of a legal proceeding. The article ends with the observation that even
today we are witnessing attempts to create legal reality by means of activity external to
the courts, in the public-media arena, similar to the case of Baranes.

Full article is available in Hebrew here

The Story of Turgeman:
Utopia in Chains – Turgeman v. the Attorney General

Nomi Levenkron

This article explores the meeting point between the various actors involved in the regulation
of prostitution – its designers, its enforcers and its objects – through the story of Miriam
Turjeman, who was indicted and charged with running a brothel in 1964 together with
her pimp. This court case could have been the most common of legal proceedings, had
it not reflected the main outcome of a process designed to rescue women in prostitution
from their abusing pimps; however, it produced mainly harmful results for the women.
The article uses this test case to outline potential damages that criminal law might cause
women on whom it wishes to impose its defense.

Full article is available in Hebrew here