Law & Social Change - Volume 6

Law & Social Change

Volume 9

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Abstracts:

Gently Weeping:The Emotional Price Paid by Public Interest Lawyers

Nomi levenkron

Those who work with disadvantaged populations and trauma victims pay an emotional price manifested in their personal and professional lives. The literature on this subject has to date focused mainly on the emotional price paid by mental health professionals, presenting phenomena such as secondary and vicarious trauma that mirror their clients’ traumatic symptoms. Research on this subject concerning lawyers is still at an early stage and the number of studies is limited.

This article examines the emotional prices paid by public interest lawyers in Israel, based on qualitive interviews with 22 of them. The main conclusion is that these lawyers pay a considerable price influenced by two key factors: individual aspects, including the attorney’s personality, and structural aspects, particularly an inadequate academic training process that fails to introduce law students to the emotional aspects of legal practice.

Full article is available in Hebrew here.

Whose life is it anyway? The challenge to ensure autonomy and legal capacity for people with disabilities

Yotam Tolub and Arlene S. Kanter

In Israel today, there are around 40,000 people who have a guardian. This article addresses the question of whether the institution of guardianship, which was developed many years ago to protect people whom society deemed were unable to protect themselves, is appropriate today, given our commitment to human rights and non-discrimination on the basis of disability. The first section of the article summarizes the historical and legal background of the development of guardianship and details the legal and practical consequences of guardianship. The second section of the article describes how the critical approach to disability exposes the discriminatory nature of the institution of guardianship and offers an alternative model based on full legal capacity and “supported decision making”. This section of the article discusses the mandate of the UN convention on the Rights of persons with disabilities (CRPD) for full legal capacity for all people with disabilities and the legislative reforms that the CRPD has prompted in many countries around the world. The article then summarizes five paths that have been taken in the last few decades to revise guardianship laws. In the third section, the article focuses on prior Israeli law and court judgment. Here, the authors argue that despite human rights rhetoric, Israel’s Supreme Court has refrained from fully recognizing the right of all persons with disabilities to legal capacity. Nonetheless, several recent lower court decisions by Israeli Family Courts demonstrate how the appointment of a guardian can be avoided through the use of formal and informal alternatives. It is these alternatives, including supported decision making, that hold the most promise for ensuring assistance to people with disabilities while also complying with the CRPD.

Full article is available in Hebrew here.

“Daddy’s gone to work, He’ll Return when the Moon Comes Out”: An examination of the ways by which Laws and Judicial Decisions Shape Fathers’ (in)Ability to Reconcile between Family and Employment

Ifat Matzner-Heruti

While there has been an increasing amount of legal research that examines work-family policies and their effect on working mothers, an examination of how these policies affect working fathers is only in its infancy. This article is therefore aimed at beginning to fill this scholarly gap and investigate policy variations in the treatment of men as gendered workers and fathers. In particular, this article analyzes the “parental benefits” provision in the Employment Equal Opportunities Law, and several cases litigated by working fathers alleging they were discriminated against at work due to their sex and parental responsibilities. It investigates the common themes emerging from the judicial decisions pertaining to issues of gender equality and employment norms.

The article asserts that these cases were unusual in the sense that fathers were the one fighting to secure parental rights in order to integrate work and family. Hence, the cases had the potential to challenge workplace time norms while emphasizing that fathers as well as mothers nowadays need to fulfill family responsibilities. However, such a possibility for positive social change was squandered by the courts, which accepted workplace practices as a given thus reinforcing the inability of parents to integrate work and caregiving. Moreover, court decisions in effect proclaim that in order to succeed at work one has to give up family life. While it has been common that men were those who usually worked longer hours and practically gave up their family lives, the courts now encourage mothers to work the same number of hours as men in order to attain gender equality.

After analyzing court cases litigated by fathers, the article suggests to incorporate masculinities theory into the work-family scholarship in order to expose how gender norms construct identity as well as shape workplace structure and practices. While these norms have been usually depicted as negatively impacting working mothers’ ability to integrate work and caregiving, the article shows that they also disadvantage fathers, albeit in different ways than mothers.

Full article is available in Hebrew here.

The work of civil rights lawyers in the PRC: Hopeless Endeavor or Important Contribution to the Construction of a Chinese Civil Society?

Orna Naftali

In the article, “Weiquan (Rights Protection) Lawyering in an authoritarian state,” Fu and Cullen describe the judicial, political and social implications of the reform of the legal profession implemented in the People’s Republic of China (PRC) in the 2000s. Noting that the reform’s key component has been the privatization of the legal profession in China, the authors argue that the change has led to a substantial transformation in the nature of Chinese lawyering and more importantly to the creation of a new space for public and legal activity aimed at the protection of citizens’ rights in the PRC. In this response article, I consider the validity of Fu and Cullen’s argument while focusing on the following question: To what extent has the activity of a small number of lawyers, dedicated as they may be, made a difference in the judicial and public culture of the authoritarian Chinese party-state? In order to address this issue, I trace some of the main trends in the development of government and public discourses on individual human rights, governance and the law in the PRC. I highlight several important caveats to the relatively positive picture Fu and Cullen present in their article. However, I also argue that since the 1990s, there has been a significant deepening in the rights consciousness of Chinese citizens of different ages and social backgrounds. The work of Weiquan (Rights Protection) lawyers forms a crucial part in this recent development.

Full article is available in Hebrew here.

Law Student as Agents of Social Change – Moral Values and Attitudes in Zefat College of Law

Yael Efron and Yaron Silverstein

Zefat Law School is one of two public colleges of law in Israel, established in the periphery of the country to serve the communities around it. It hosts a wide range of students from many cultures and backgrounds: secular and religious, Jews and Arabs, Muslims, Christians and Druze, men and women , young and old. The classroom in the school is a microcosm of Israeli society, in all its forms. This atmosphere creates opportunities for both active and passive learning of another culture and assimilation and deepening the normative and moral world of each student.

In this article we try to characterize major trends that led to study law at Zefat College, and practices which they want to take as future lawyers. The underlying assumption of this study is that students hold certain values and norms, and in the course of their studies and practice, would wish to focus their activities in the promotion of these norms and values in their communities. The research question examined whether law school made changes in these normative values, and whether the students would want to serve as agents of change in their communities later in their career. Our survey revealed frustration within the students, which we attribute to the gap they experience in law school between the potential of the law to serve social causes and the possibilities they have to apply it.

Full article is available in Hebrew here.

Law Clinics: Between a Critical Theory of Practice and a Critical practice of Theory

Yishai Blank

The expansion of legal clinics in recent decades in Israel has positioned them as a major pedagogical component of Israeli legal higher education. However, despite the intellectual fermentation that they induce, the law clinics have remained on the margins of the mainstream academic activity. Clinical teaching is fundamentally distinct from traditional legal research and education in numerous ways: it, and allows for a narrowing of the gap between theory and practice, it highlights political viewpoints that are located on the social and ideological margins of Israel and it implements methods of group learning and experimentation. These components clearly reveal the advantage of adding clinical activity to the existing model of education, and should lead to a more fundamental change in the legal academy. This change - “the Clinical turn” – will include a reformulation of the relationship between the abstract and the concrete, the theoretical and the practical, the experimental and the already-known, and the center and the periphery. Its goal would be to deconstruct these dichotomies and to examine the connections and dependence between the opposites. This change may be possible by conceiving the legal clinic as a form of critical praxis: an activity that combines critical action and critical theory. The clinic’s unique setting allows for concrete experiences, direct and experiential, with a boldness and freedom that are possible due to the academic freedom that the university provides. This setting, within the walls of academia, of both academic positions and theories, and the working assumptions of legal practice. Thus, if the clinics would challenge the hegemonic view of the law as a functional tool to promote social policy, they could then serve as a critical arena for examining the existing theories as well as the conditions for their existence.

Full article is available in Hebrew here.

The Struggle of Tinea Capitis

Victims: Success Rather than Failure

Moria Charka

The medical treatment of Tinea Capitus, or Ringworm, commonly used in the 1950s, and later found to be harmful, symbolizes for many the oppression of Middle-Eastern and North African immigrants to Israel. The academic discussion of the Compensation of the Tinea Capitus Victims Act has dealt with the causes for the failure to find redress for the victim’s grievances. In this article, I would like to reexamine the underlying assumption of this discussion, which determines that the victims’ struggle was a failed one, arguing that a struggle’s success is to be measured according to its leaders’ goals. When judged by the statements of the struggle’s leaders to the Israeli media, their aim to achieve monetary compensation for the victims and public recognition of their suffering. I show their successes in achieving these goals by comparing them to three other groups of victims harmed by medical treatment which was not negligent, that claimed compensation during the same years: those injured by vaccination, those who contracted HIV from blood transfusions, and those harmed by DES. Indeed, the comparison shows that the Tinea Capitis victims received compensation and recognition beyond other groups of people harmed in similar circumstances. Furthermore, those criticizing the legal mechanisms in the Act for ostensibly silencing the victims and preventing them from bringing their protest to courts, do injustice to the victims’ achievements and to the Act as a whole. A closer look at the Act and its Judicial implementations shows how it enables the victims to voice their narratives within the courts, even after receiving full compensation. I thus conclude by arguing that the proper redress for the still-festering wound of the treatment of Tinea Capitis is not to be found in the legal arena, but rather in other spheres.

Full article is available in Hebrew here.

Class Actions as a Vehicle to Social Change

Asaf Pink

The article discusses how to enhance the use of the class action apparatus by NGOs and public interest lawyers. The author investigates the reasons behind the fact that NGOs and public interest lawyers shy from using the class action as a tool to social change, and claims that this reluctance is caused due to poor knowledge and recognition of the potential of using private law as an instrument to social change, and also due to the natural inclination of NGOs and public interest lawyers towards using public law and pleas to the Supreme Court rather than private law.

In order to illustrate the importance of using class action lawsuits, the author uses statistical data on class actions filed and ended since the enactment of the Class Action Law in 2006, highlighting the high number of withdrawals and the little use made with the matters relating to social change, which are enumerated on the second addendum to the Class Action Law. The author argues that the groups represented in class actions and the whole society will benefit from NGOs filling class action as litigants.

After reviewing the class action scene, the article reviews and proposes several possible models for uses of class action by NGOs and social activists, including the NGO as a plaintiff, as the attorney, as a supervisor that intervenes and opposes the settlements in ongoing procedures and more.

Finally, the author calls NGOs to start using class action as a vehicle for social change.

Full article is available in Hebrew here.

Class Actions and Collective Labor Relations – the Good, the Bad and the Ugly

Eran Golan and Yael Pitman

This article seeks to analyze the interplay between the class action mechanism and collective labor relations in the secondary labor market. The Class Actions law of 2006, although extending the protection of the class action apparatus to employment law, has barred an employee, to whom a collective agreement applies, from submitting an employment claim under that law. This paper examines the implications of this statutory restriction on class actions, in light of the rulings of the national labor court and the occurrences in the secondary labor market during the last three eventful years. During this period, the failure of Israel’s largest labor union (“HaHistadrut HaKlalit”) to represent contract workers, has led to courts’ approval of employment class actions despite the statutory limitation and in order to enforce employees’ rights in the secondary market. However, it also led the opposing labour union (“HaHistadrut HaLeumit”) to penetrate the field, signing depriving collective agreements as part of a class settlement, thus perverting future class actions. These developments urge us to rethink the utilization of the class action mechanism in unionized workplaces and to offer guidelines that will enable an efficient and fair use of this powerful tool by the courts, without undermining the prominence of organized labor.

Full article is available in Hebrew here.