Law & Social Change

Abstracts:

Exposing Discrimination: The Use of Testers by
Social Change Organizations

Gil Gan-Mor

Using testers can effectively reveal whether employers, businesses and service providers treat

their potential clients or employees equally regardless of their race, ethnicity, disabilities, gender

orientation, etc. The Article first discusses whether social change or rights organizations that are
active against discrimination should adopt the use of testers, examining the justifications for using
testers as a tool to expose hidden discriminative practices and to improve the enforcement of
antidiscrimination laws, in light of the barriers that prevent victims of discrimination from fighting
it themselves. It also discusses possible criticisms of this activity; and makes suggestions for
mitigating the fear of abuse of this tool. The second part of the Article evaluates the effectiveness
of using testers, especially the possibility of obtaining effective remedies in a legal suit that is based
on the results of such tests. Specifically, it discusses the right of a social change organization to go
to court based on the results of a test that it initiated, and the courts’ ability to order the payment of
deterring compensation where the victim is a tester.

Full article is available in Hebrew here

The Tax Collector, the Gangster and the Pirate:
A Review on Assaf Likhovski’s Book

Leora Bilsky

Assaf Likhovski’s new book, “Tax Law and Social Norms in Mandatory Palestine and Israel,” tells
the story of Israel’s tax law by returning to its origins during the British mandate as a system based
on social norms, and following its changes and transformations from an intimate institution relying
on voluntary cooperation of taxpayers to a formal system enforced by lawyers. At the center of the
book stands the question of the relation between tax law and the formation of civic identity and a
commitment to democracy. But whereas the book tries to reconstruct the voluntary aspects of the
system, this Review is more interested in uncovering the hidden violence that is never far from the
surface. More generally, it inquires into the relation between law and violence by comparing the
benign social norms system to its social Other: the Mafia gangster and the pirate. The first part of
the Review argues that historical research reveals unexpected commonalities and continuities that
undermine the prevailing assumption of a clear dichotomy of law vs. violence. The second part
turns to examining the book’s thesis about the strong connection between a social norms model
and civic solidarity by discussing the failure to apply this model to the Arab minority after the
establishment of the state.

primary petition. This outcome thwarts the purpose of the original petition: to design an arrangement

that protects the freedom of movement.
The Article identifies and analyses the causes of the constraints on judicial review and the
outcomes of such constrained review. It suggests that the role of the Court; its institutional
characteristics; the dynamic between the judicial and executive branches; and the nature of the
obstacles hindering realization of rights, all of these impede effective judicial review that could
lead to correcting the bureaucratic impasse. These difficulties result in the de facto immunity of the
procedure from intervention and continued violation of rights.

Full article is available in Hebrew here

The Right to an Unfair Trial: The Rise of in camera Hearings, the Fall
of Petitions for the Disclosure of Evidence

Elad Cahana

This Article deals with petitions for the disclosure of evidence in administrative procedures. Even
though the Evidence Ordinance allows the submission of such petitions, very few have been
submitted in the last few decades; instead, the courts hold ex parte in camera hearings without
allowing claims to be made regarding the privilege itself before a judge separate from the judicial
panel. The Article will present the advantages of filing petitions for the disclosure of evidence, and
argue that due to the court’s ruling, according to which a petition for disclosure of evidence prevents
the possibility of holding an in camera hearing regarding the content of the evidence itself, such
petitions are no longer submitted, which is an unworthy and unjustified outcome. The Article will
examine the results of the author’s experience in submitting petitions for the disclosure of evidence
in recent years, which has demonstrated that the threat of this ruling is not realized, but also that
the way in which petitions for disclosure of evidence are examined today leads to their rejection.
It will be argued that the court hearing the petition for the disclosure of evidence in administrative
proceedings today is looking for evidence that assists the petitioner, as is done in criminal contexts,
in disregard of the fact that in administrative proceedings the evidence always works against the
petitioner, but it is its disclosure that will help the petitioner deal with the allegations against him.

Full article is available in Hebrew here

Revisiting Home Visits for Social Housing

Becky Cohen Keshet

This Article deals with the procedures created in order to realize the social right to housing,
procedures which in effect often undermine rather than support this right. Through the case of a
client of public housing, represented by the author in three different courts, the article exposes and
analyses the flaws in the bureaucratic system, as well as the legal system, as both relate to social
rights of people living in poverty.
Bureaucratic procedures are removed from the daily reality of people living in poverty, while
the legal system makes assumptions and follows procedural rules that do not sufficiently protect
poor people’s rights. The Article suggests some needed changes, if the court system is not only to
be efficient but also to fulfill the function of supporting the human right to dignity.

Full article is available in Hebrew here

Together We Stand? Unity and Disagreement in the
LGBT Community – Background, Current Status and
Proposal for Future Advancement

Hagai Kalai

The different groups that make up the LGBT community are not "natural" allies, and the quest for

equal rights has not always been a united effort. Besides the different needs and interests of the
various groups, tensions and disagreements in the LGBT community arise also based on the lines of
gender differences, national differences, ethnic differences and socioeconomic gaps. The question,
therefore, is how can this political and legal community move forward? What are its common
goals? What should be perceived as an LGBT issue and what lies beyond the scope of the LGBT
purview? To these questions this Article wishes to provide answers.
The Article will provide ethical rules (standards of conduct with no sanctions in case of
infringement) that can help identify causes to which the LGBT legal and political community
should attend (even if unpopular) and which issues should not be part of the LGBT agenda. The
normative foundation of the LGBT political and legal activity is the elimination of discrimination
based on the expectation that one will conform to the heteronormative triangle, that is – exhibit
a proper alignment between sex, gender identity and sexual orientation. Based on this normative
background, the Article rejects two popular normative arguments – the broad approach, which
opposes efforts to advance LGBT rights in social institutions that are seen as oppressive to other
groups, and the narrow approach, which argues that the LGBT community as such should advance
LGBT rights only if gender identity or sexual orientation is the sole cause of the discrimination.
In the second part of the Article, the aim is to provide ethical tools for those who have to make
decisions regarding the priorities of the LGBT community. Four ethical considerations are offered
that should be taken in account: the democratic consideration; the feasibility consideration; the
harm consideration; and the anti-hegemonic consideration.

Full article is available in Hebrew here

A Failure Foretold: Procedures as Instruments for the Denial
of Substantial Rights from Palestinian Residents

Maayan Niezna

This Article considers the limitations of judicial review in cases where a complex and cumbersome
array of bureaucratic procedures hinders the realization of substantive rights. It suggests that in
addition to hindering the realization of rights, such bureaucratic obstacles might also prevent
effective judicial review. The Article considers the nature of interventions by the High Court of
Justice in several petitions that demanded that the security authorities create or change regulations
in order to implement different aspects of Palestinian residents’ freedom of movement. The Court
initially ordered the authorities to create such bureaucratic arrangements and regulations, but as
this Article shows, it also granted the authorities a wide margin of appreciation as regards such
procedures. This wide margin of appreciation prevents the Court from intervening in later petitions
that address practical difficulties in implementing the procedure that was adopted as a result of the

Full article is available in Hebrew here

Governance Feminism and the Denied Surrogacy
Market in Israel

Maayan Sudai

Scholars have recently started to assess the successes and perils of the utilization of governance
power by the feminist movement in the last few decades, justly dubbed “Governance Feminism.”
This Article seeks to initiate a local discussion applying this critique to the Israeli context to see
whether it makes sense, both descriptively and strategically. It focuses on a controversial topic
which is currently under legislative revision in Israel – surrogacy. Feminist ideas and theories
played a constitutive role in the formation of surrogacy law in Israel in the 1990s, mostly through
the participation of feminist NGOs and their allies in designated parliamentary committees. The
Article first describes the ways in which feminist ideologies shaped the arrangements of surrogacy
law and designed the opportunities for financial compensation to surrogate women. It then outlines
a basic starting point for a distributional analysis that could hopefully guide the way forward in light
of future challenges concerning equal access to surrogacy for gay men and single women.

Full article is available in Hebrew here

Twenty Years of Coping with Sexual Harassment in
Israeli Academia: A Call for Commitment to Both the Vision
and Specific Details

Orit Kamir
Twenty years after the enactment of Israel’s Sexual Harassment Law, Israeli academia still
features conservative strongholds of diehard patriarchy – alongside pockets of dogmatic gender
political correctness. Conservative patriarchy sometimes succeeds in undermining the effective
application of the law by stripping specific legal rules and regulations of their normative meaning
and content. Dogmatic political correctness may sometimes be zealously righteous at the expense
of commitment to details of fact and/or law. These extremes reinforce one another. Silencing
"common sense" objections, dogmatic political correctness may provoke a backlash. This Article
presents this analysis through a close reading of two case studies. It argues that commitment to the
Sexual Harassment Law and its normative vision requires faithfulness to both the idea of women’s
liberation from patriarchy and the minute details of fact and law.

Full article is available in Hebrew here