bluuebunny/crossref_metadata_2025 huggingface dataset:
SMOOTHNESS OF CONVOLUTION PRODUCTS OF ORBITAL MEASURES ON RANK ONE COMPACT SYMMETRIC SPACES
Authors: HARE KATHRYN E. , HE JIMMY
Published: February 2016

We prove that all convolution products of pairs of continuous orbital measures in rank one, compact symmetric spaces are absolutely continuous and determine which convolution products are in $L^{2}$ (meaning that their density function is in $L^{2}$). We characterise the pairs whose convolution product is either absolutely continuous or in $L^{2}$ in terms of the dimensions of the corresponding double cosets. In particular, we prove that if $G/K$ is not $\text{SU}(2)/\text{SO}(2)$, then the convolution of any two regular orbital measures is in $L^{2}$, while in $\text{SU}(2)/\text{SO}(2)$ there are no pairs of orbital measures whose convolution product is in $L^{2}$.
Fighting for Credibility: US Reputation Building in Asymmetric Conflicts from the Gulf War to Syria (1991–2013)
Authors: Harvey Frank P. , Mitton John
Published: February 2016

Do international reputations matter and are they transferable from one context to another? These critically important questions continue to frame policy debates surrounding US responses to crises in Syria and Ukraine. For skeptics, past actions and reputations for resolve have no bearing on an adversary's assessment of US credibility; relative “power” and “interests” explain behaviour (Hopf, 1994; Mercer, 1996; Press, 2005; Walt, 2013; Zakaria 2013). We argue that scholars who dismiss the relevance of reputations typically sidestep important questions about how adversaries actually acquire relevant information about US interests and power. Building on an extensive collection of qualitative and quantitative studies of US deterrence encounters in asymmetric conflicts over the last two decades, we argue that lessons from past actions inform an adversary's interpretation of US interests in any given case and provide crucial information about Washington's willingness to deploy military force (capabilities). By implication, lessons learned from Bosnia 1992–1995 informed actions in Kosovo 1999, which, in turn, informed subsequent assessments of US interests and commitments in Iraq 1991, 1998 and 2003. Similarly, lessons about US reputations and credibility in Iraq from 1991 to 2003 were critically important to successful WMD diplomacy in Syria. Policy implications are addressed in the conclusion.
Toleration Without Hate Speech: The Keegstra Decision, American Free Speech Exceptionalism and Locke's Letter
Authors: LaSelva Samuel V.
Published: February 2016

This paper re-examines the issue of hate propaganda under the Canadian Charter of Rights and the US Bill of Rights. It also reconsiders the significance of Locke's Letter Concerning Toleration. What the paper attempts to show is that one strand of Locke's famous argument supports First Amendment exceptionalism and Justice Holmes's dissenting opinions in Abrams and Schwimmer, but another strand buttresses the Keegstra and Butler decisions and the Report of the Special Committee on Hate Propaganda in Canada. In the contemporary context of the debate over free speech and its limits, Lockean toleration has communitarian as well as libertarian dimensions, and the control of hate propaganda in Canada's multicultural and multinational polity becomes more clearly an important part of the liberal tradition.
The Teaching of Religion in Government Funded Schools in Israel
Authors: Goldstein Stephen
Published: February 2016

Religious education in Israel is inextricably linked with the more general aspects of the complex role of religion in Israel, which in turn cannot be understood without a basic understanding of Israel as a Jewish state, as well as that of the traditional status of religious-ethnic-national groups in the Middle East.

A comprehensive discussion of these complex issues would take us well beyond the confines of this paper. Thus, we will discuss them only briefly herein, thereby necessarily dealing in generalizations which may, at times, be overly simplistic.
A Digest of Selected Judgments of the Supreme Court of Israel
Authors: Rothman Ivan
Published: February 2016

The following is a survey of major judgments of the Supreme Court of Israel published in (1990) 44 Piskei Din, volumes (i) and (ii), directly following upon our last digest which appeared in (1991) 25 Is. L. R. 219.

I. Constitutional and Administrative Law

Medianwest Herzliya Medical Centre Ltd. v. Director General of the Ministry of Health & the Minister of Health (1990) 44(i) P.D. 19

Commodities and Services (Control) Law, 1957 —parallel legislation — effects of policy — exercise of discretion

The petitioner, a company registered in Israel, was established by a group of private, foreign investors for the purpose of developing and operating a number of private medical centres, and providing medical services. The petition centred on the respondents' refusal to allow the petitioner to open a hospital in Haifa. According to the respondents, their refusal reflected a general policy to oppose the establishment of additional public or private hospitals.
Privacy Rights and Satellite Broadcasts
Authors: Gillis Jonathan
Published: February 2016

The subject matter of this article is, at bottom, a practical problem. It accepts that people have a right to privacy and that this right should find proper protection in the law. It asks, simply, whether such protection is at all feasible given the particular technology of broadcast by satellite.

For the purposes of investigating this problem several issues must be addressed. First is the nature of the violation of privacy involved. Our concern here is principally with TV news broadcasts. We begin from the point where the debate over “what is in the public interest versus what the public is interested in” has ended; there will be general consensus that the content of a certain broadcast represents a violation of an individual's privacy and one about which the law should do something. An example might be the filming in the public domain of a private individual caught in the shock of personal grief or tragedy. In such a case we would need to investigate the nature of the injury involved in any subsequent broadcast of these sounds and images, and to ask what dimension, if any, is added to this injury by their simultaneous broadcast across the globe.
Toward Justice in the Organ Trade
Authors: Zohar Noam J.
Published: February 2016

Transplantation of organs from live persons may take place without any payment to the donors, and this involves relatively few moral problems. Gift donation appears to be widely accepted as a laudable and welcome form of benevolence. Even though an organ gift may entail some risk to the donor, his or her consent — provided that it is freely given and properly informed — renders such risk non-objectionable.

Gift donation cannot, however, be expected to fill the large and growing demand for transplant organs. Thus, the issue of a market in organs has for some years now been the subject of ethical and legal scrutiny, and has been addressed by (generally prohibitive) legislation. What follows is intended as a critical survey, focusing initially on organ-buying, and then on organ-selling.
Kidney Donations from the Legally Incompetent in Jewish and Comparative Law
Authors: Sinclair Daniel
Published: February 2016

The Israeli Supreme Court addressed the issue of kidney donations from the mentally incompetent in Attorney General v. A and Others. The Supreme Court reversed a District Court decision which permitted the transplant of a kidney from a 39 year old mentally incompetent son to his 65 year old father, who was suffering from severe renal failure. In permitting the transplant the District Court noted the uncontested fact that the son was receiving the best possible care from his father, and reasoned that it was in the best interests of the son to give up a kidney in order to continue receiving his father's devoted care. In reversing the District Court's decision, the Supreme Court emphasised the need for the establishment of a “clear and substantial benefit” to the legal incompetent before any of his or her organs are transplanted to another individual. The Court was not inclined to accept the more subjective substituted judgment approach found in some similar American cases. The interests of other individuals, or even of the community as a whole, may not be preferred over those of the incompetent person. In the present case, no such “clear and substantial benefit” accruing to the son from the kidney donation had been demonstrated. Amongst the reasons given by the Court for this finding was the existence of a doubt as to the chances of a successful transplant in light of both the father's age and the seriousness of his condition. It was also unclear why the son could not receive the same quality of care from his siblings as he had received up to now from his father.
Artificial Techniques of Procreation: Legal and Moral Aspects
Authors: Shifinan Pinhas
Published: February 2016

The Psalmist's wrote: “For my father and my mother have forsaken me, but the Lord will take me up”. The eleventh-century commentator Rashi explains that this abandoned child, forsaken by his father and mother, is actually a fetus. “For my mother and father have forsaken me— [i.e.] during coition, they thought of their own enjoyment, and having finished their enjoyment, he turns away and she turns away;But the Lord will take me up— [i.e.] the Holy One Blessed Be He protects the semen and creates the fetus”. This graphic and surprisingly poignant depiction of the bedroom is an attempt to portray man's existential solitude from the very moment of conception. He is abandoned by his parents, who were partners to his conception. They forsake him as soon as they complete their sexual intercourse, since their exertions were meant for pleasure, not for childbirth. At this point, intercession comes from God, whom the Sages elsewhere say is the third partner to the creation of man. God assumes responsibility for the continued development of the embryo from conception onward. The underlying assumption of this view is that childbirth is an incidental byproduct of sexual relations, which are primarily intended for mutual pleasure.
“Ownership” “Assets” and Transferability of “Property Rights”
Authors: Weisman Joshua
Published: February 2016

1. The connection between the proprietary nature of a right and its transferability was discussed at length in my article, “Some Fundamental Concepts of Property Law: A Critical Survey”. The view expressed there was criticised by Prof. Tedeschi in two articles: the first, “On the Right of Preemption in Land”, and the second — “Property and Transferability — Ownership of Organs Taken from a Living Person”. The latter included criticism of certain things I had written in my article, “Organs as Assets”, in relation to the connection between an object constituting an “asset” and it being “transferable”.

According to my approach, transferability is a central feature of a property right, and of the nature of a thing as an “asset”. Prof. Tedeschi, however, believes otherwise.
Gift Of Organs — A Note
Authors: Rabello Alfredo Mordechai
Published: February 2016

Is it possible to view human organs as assets that can be given as “the subject of a gift”? The view most widely accepted in the legal literature is that a dispositionary act in relation to our body cannot constitute the object of a binding contract, if the execution of the contract could endanger the life of the person (i.e. the person making the disposition) or constitute a risk to his physical well-being. In such a case, the contract would contradict the general principles of law and morality.

It is an accepted legal principle that a person may make a commitment to give hair, to nurse a child or to donate blood. In a contract for consideration, the validity of the obligation must be determined, but stipulating specific performance is prohibited, thus the only remedy can be the awarding of damages. The law in Israel is clear that the giver of a gift can retract his promise up until the moment of giving, and if the intended recipient of the promised organ is detrimentally affected, the reluctant giver will be liable, at most, to compensate the frustrated recipient.
Environmental Aspects of the Cairo Agreement on the Gaza Strip and the Jericho Area
Authors: Hirsh Moshe
Published: February 2016

Environmental resources and hazards do not recognize political boundaries. The basic fact that the people of Israel and of the new Palestinian entity in the West Bank and the Gaza Strip share several important natural resources compels the parties to co-operate in the protection of these resources. Neither party is solely able to manage these essential resources (e.g., water) and any attempt to act unilaterally in this sphere might harm the interests of both parties. A quick reading of the Agreement on the Gaza Strip and the Jericho Area (“the Cairo Agreement”) shows that the parties were indeed aware of this, and the agreement includes numerous environmental provisions in various sections.
Jerusalem and the Peace Process
Authors: Lapidoth Ruth
Published: February 2016

It is generally thought that Jerusalem is the most difficult problem that the peace-makers have to deal with. The centrality of the issue of Jerusalem derives neither from security considerations nor from economic interests, but from emotional and religious sensitivities. The complexity of the issue is the result of three factors: the city is holy for adherents of Christianity, Islam and Judaism, namely, it is sacred for many millions of people, most of whom do not live in the city; it is the subject of conflicting national claims of two peoples — Israelis and Palestinian Arabs; and its population is very heterogeneous. A solution to the conflicts about Jerusalem is asine qua nonfor the achievement of a viable and durable peace in the area.
The Law of Religious Dissidents: A Comparative Historical Survey
Authors: Cohn Haim H.
Published: February 2016

The three great monotheistic religions, Judaism, Christianity and Islam — the subject matter of this survey — have several distinctive marks in common: they postulate the belief in and worship of God; they each have holy scriptures and other canonical texts and vest authoritative interpretations or applications thereof with binding force; each designates a class of officials or functionaries to preserve and propagate the faith; each seeks to imbue its religious, ethical and legal norms into the daily lives of individuals and communities; and none suffers dissidents from within. In addition there are, at least in Christianity and Islam, certain fundamental dogmata (for example, the Holy Trinity in Christianity, the divine prophecy of Muhammad in Islam) which everybody is duty-bound to believe. In each religion, ancient or medieval scholars of authority have compiled lists of articles of faith, the dissent from which by any individual coreligionist is proscribed. It will be shown that these lists are not necessarily exhaustive: the possibilities of dissidence are virtually unlimited.
The Intervention of American Law in Jewish Divorce: A Pluralist Analysis
Authors: Stone Suzanne Last
Published: February 2016

The tension between the norms of gender equality and religious freedom is a major focus of international human rights debate. States that adopt religious law contend that gender discriminatory religious practices are protected under international law guaranteeing rights of cultural autonomy and religious freedom. Others argue that only discriminatory practices that are not the product of State action but, rather, take place in the private realm of civil society should be accorded such protection. Many women's rights activists, on the other hand, urge the State to actively reform religious law and restructure cultural practices even in the private realm, “not only as a means of ending gender-based restrictions on specific human rights but also as an essential step toward dismantling systematic gender inequality” perpetuated in traditionalist cultures. The larger philosophic issue underlying this debate, how to reconcile universal human rights and multiculturalism, understood as the primacy of group cultural identity as a morally and politically significant category, is complex, but not new. It is the age-old one, as Joseph Raz has put it, “of how to combine the truth of universalism with the truth in particularism.”
Freedom of Religion as a Source of Claims to Equality and Problems for Equality
Authors: Giegerich Thomas
Published: February 2016

The earliest political and legal documents inaugurating the era of constitutionalism in the late 18th century already emphasized the principles of liberty and equality. The first one, the American Declaration of Independence of 1776, attributes the liberty and equality of human beings to the Creator, thus giving a religious explanation for its postulates. The second one, the French Declaration of the Rights of Man and Citizen of 1789, plainly states in its first article that humans are born and remain free and equal in rights, which are defined as natural rights serving the public good and thereby put in a more secular context, although theDéclarationalso recognizes the presence and protection of the “Supreme Being”. Ever since, the religious and the secular explanations have been competing with and supplementing each other in ensuring the effective protection of human rights. And ever since, liberty and equality have been competing with and supplementing each other in keeping the proper balance between the interests of society and the aspirations of the individual.
On the Relevance of “Relevance” to the Theory of Legal Factfinding
Authors: Scolnicov Anat
Published: February 2016

In modern evidence theory two main theories of legal factfinding have emerged. One of these is the mathematical probabilistic approach, which claims that the universal rules of mathematics apply to legal factfinding as to any other rational decision-making. The opposite approach, of Tribe, Nesson and others, contests this view. Those opposing the mathematical theory have done so mostly on grounds of legal policy, which I shall not be concerned with. However, some of the sharpest criticism, at least from the point of view of the adherents of the mathematical explanation, has been of the soundness of the mathematical explanation. In certain instances typical to the legal process, the mathematical approach has been claimed to lead to absurd results which contradict common sense and legal doctrine.

In this paper I will claim that the rules of mathematical probability must apply to legal factfinding and if fallacies in its application are exposed, their existence must be due to error in the way in which the rules have been applied. I will argue and try to prove that the concept of relevance, an essential concept to any theory of legal factfinding, has been disregarded in mathematical probability theory.
Children v. Parents: A New Tort Duty-Situation for Psychiatric Injury?
Authors: Kershner Susan Maidment
Published: February 2016

Recognition of liability in negligence for personal injury, whether physical or psychiatric, is a question of public policy par excellence. In English tort law, public policy is a transparent judicial requirement in fixing liability even when negligence is established otherwise. In considering the tortious liability of a local authority to children in its care, the English House of Lords has, in obiter dicta, raised doubts as a matter of public policy concerning the enforceability of claims for damages by children against a parent for emotional neglect causing psychiatric injury. In Israel, by contrast, the Supreme Court recently extended tortious liability by enforcing the parental duty of care to children through a claim for psychiatric injury. So far Israeli law is unique in this development. Variations in judicial policy concerning the recognition of claims by children for psychiatric injury are considered here, in the contexts of English tort law, and Israeli, US and European human rights law.
The Courtroom as Theater and the Theater as Courtroom in Ancient Athens
Authors: Parush Adi
Published: February 2016

To prevent any misunderstanding, I first would like to clarify that I am not a historian dealing with classical studies; my main disciplines are philosophy and law. However, following a seminar I gave dealing with several philosophical-legal aspects of Greek tragedy, and an article I wrote about the relationship between the concept of guilt in Oedipus Tyrannus and the principle of strict liability in modern criminal law, I have found myself in recent years becoming increasingly interested in the unique culture which emerged in Athens during the classical period, particularly in the 5th century BCE. In the course of that century, Athens was involved in many wars – against the Persians in the early decades, against Sparta (the Peloponnesian War) in the latter decades, and other “minor” wars. And yet despite these wars, during the 5th century BCE Athens was in a state of cultural-social-political ferment that left its mark on the whole history of western culture. In the course of that century, there was in Athens a burgeoning of independent-critical thought in the philosophical domain, nature and medicine were systematically studied, tragedies by the Athenians Aeschylus, Sophocles and Euripides were written and performed, and the democratic regime took shape.
Further Hearing – Theoretical and Empirical Aspects
Authors: Goldschmidt Chanan
Published: February 2016

The hearing framework known as a further hearing has been familiar to the general public in Israel for some time. This procedure is granted upon the petition of the parties or by the justices of a specific panel of the Supreme Court. However comprehensible the concept appears to be, in view of its simple designation, this legal device has not merited meaningful attention in legal research. By law, a further hearing is a situation where “in a matter on which the Supreme Court has ruled, with a panel of three or more justices, it may rule at a further hearing as a panel of five or more justices.” In such a case, an expanded Supreme Court bench hears a matter that has already been ruled, but the Court may also convene an expanded panel in other instances. It may also do so in a case that was originally heard by an expanded panel without being designated a further hearing, in which case, it will simply be designated an “expanded panel.” This article will address the concept of the further hearing, as opposed to the phenomenon of “expanded panels” in general. The first part of this article will be theoretical, and we will seek a conceptual understanding of this legal institution. In the second part, the article will address empirical research on this subject and will present quantitative data on further hearings held in the course of over thirty years of Supreme Court adjudication (1970-2000). The third and last part of this article will present possible conclusions that may be drawn from the empirical results and will question the need for such an institution.
On Equality – Judicial Profiles
Authors: Raday Frances
Published: February 2016

My purpose in this paper is to examine the way in which judges have developed the concept of equality in Israel. This examination will concentrate on Supreme Court judgments regarding the right to equality, in the context of group discrimination. There is a dual focus to the research: first, analysis of the decisions in order to clarify the concept of equality which is applied by the judges and, second, examination of the extent to which the judges have been activist in promoting the concept of equality. The latter enquiry is directed both to the intrinsic importance of this question and also to the current flood of attacks on the Supreme Court's judicial policy on the alleged grounds that it is over-activist and, hence, illegitimate. The reason for the choice of the equality issue as the litmus test of judicial activism is the fact that it is the Court's decisions on this issue which have provoked much of the political opposition to the Court. There have also been academic claims that the Court has been too activist, which criticize the Court's human rights jurisprudence, arguing that the Court has over-extended the borders of human rights concerns to include situations that should not properly have been perceived as such.
Temporary Appointments and Judicial Independence: Theoretical Analysis and Empirical Findings from the Supreme Court of Israel
Authors: Salzberger Eli M.
Published: February 2016

Judicial independence is regarded as an essential condition for the rule of law and separation of powers — two pillars of liberal democracy. Judicial independence ought to include components to secure independence on the individual level, as well as components to secure independence on the institutional level of courts. The most important objects of judicial independence are the other branches of government, but some degree of independence from the general public and from other judges is required as well. These features of independence can be achieved by rigid and entrenched arrangements regarding tenure, immunity from wage decrease, special procedures for appointment and promotion of judges, mechanisms for the allocation of cases to judges and the composition of the benches, and more.
Foundations in Germany and Israel: An Analysis of the Legal Framework
Authors: Lerner Pablo
Published: February 2016

This article compares the law of foundations (charities) in Germany and Israel. What is a foundation and what it is created for, may receive different answers in different legal systems. When an Israeli jurist refers tohekdesh, he is not referring to the same concepts included in the GermanStiftung. These differences find expression both in practical and theoretical matters. For example, German law recognizes the foundation as a legal personality, a characteristic lacking in Israeli law. Moreover, in Germany a foundation managing a business enterprise, or an enterprise adopting the legal form of a foundation, is an accepted phenomenon, but this is not accepted in Israel.

To understand what a foundation is, it is necessary to distinguish between the different types of foundations: on one hand public or private ones, and on the other hand religious and secular foundations. This article discusses the methods of creating a foundation (mortis causaorinter vivos) and examines the elements needed to create it: purposes, assets (one of the central points in Foundations Law is to ensure their efficient use) and management. The comparison does not obviate the problem of state supervision, needed to ensure the right of the beneficiaries and of the entire community to correct usage of the endowed resources.

In the final analysis, the paper stresses the importance of comparative law as an instrument aimed to broaden legal theory and enrich the dialogue between jurists of different countries.
Three-Dimensional Partition and Registration of Subsurface Land Space
Authors: Sandberg Haim
Published: February 2016

Traditional legal doctrine pictures land ownership in the form of a cone down to the center of the earth. This article suggests that it is desirable for the law to enable subsurface subdivision into separate, three-dimensional property units, constituting separate subjects for title and transactions. Thus the law would contribute to the public interest in recognizing the subsurface space as a separate property unit from both the functional and the planning aspects.

Before three-dimensional registration can begin, it is necessary to create an infrastructure of professional standards for three-dimensional survey for registration purposes. The creation of such standards constitutes one of the main goals of the world survey profession.

It may be assumed that there is a downward limit below which the subsurface has no effect on the surface space and vice versa. In this case, the traditional doctrine may be seriously contested by the argument that those deep levels of the earth should be defined as a collective property. However, it is not practical to establish a fixed downward limit upon ownership of subsurface space. When expropriating the subsurface, it is necessary to compensate the landowner for the consequential damage, as well as for the direct damage incurred. There is some doubt whether compensation should be paid for subsurface area that the landowner could not reasonably and practically exploit. As soon as the axiomatic impediment to three-dimensional subdivision is removed, the importance of long-term planning for subsurface use will increase.
Levirate Marriage in the State of Israel: Ethnic Encounter and the Challenge of a Jewish State
Authors: Westreich Elimelech
Published: February 2016

The article examines the approach of leading rabbis toward levirate marriages following the establishment of the State of Israel. Chief Ashkenazi Rabbi Herzog supported the abolishment of levirate marriages and attempted to impose on all ethnic communities the Ashkenazi approach, which since the 13th century favoredchalitza. Chief Sephardic Rabbi Uziel supported rabbi Herzog although the levirate commandment takes precedence overchalitzain the Sephardic and oriental traditions and is practiced in these communities. In 1950, the two Chief Rabbis led a council of rabbis that enacted a regulation rejecting levirate marriages and favoringchalitza. Rabbi Uziel believed that two opposing traditions governing an issue as central as family law are not appropriate in a modern state. He perceived the levirate marriage, which binds women in matrimonial relations against their will, to be inconsistent with their status in the modern era. The strong roots of the Ashkenazi Halachic tradition, which has for many generations rejected levirate marriages, allowed him to demand that all ethnic groups adopt it. Rabbi Yossef and other oriental critics regard his actions as submissive to Ashkenazi tradition, a criticism I reject. Rabbi Yossef vigorously opposed the abolition of levirate marriages, and in a decision in 1951 he claimed that it was invalid. It was the beginning of his struggle against what he perceived as Ashkenazi dominance and Sephardic submission, demanding the restoration of the oriental and Sephardic traditions. In time, this became an explicit ideological-political stance under the mottoleachzir atara le'yoshna. I suggest that Rabbi Yossef endeavors to restore the golden age of the Bashi sages in Jerusalem, chief among them Rabbi Elyashar, at the twilight of the Ottoman period.
Embryonic Stem Cell Research and Therapeutic Cloning: Scientific, Ethical and Legal Perspectives
Authors: Dahan Leora
Published: February 2016

At the turn of the millennium, some of the most controversial topics being internationally debated were the issues of embryonic stem cell research and cloning. Stem cell research involves the exploration of the medical possibilities latent in primary, relatively undifferentiated cells. Such research, however, is not fully supported by the entire scientific community or by all of the general public due to the ethically controversial practices involved in such research. Generally, stem cell research requires the destruction of an embryo, which is perceived by some as the destruction of human life, or at least the destruction of an entity bearing the potential to evolve into human life. Thus, despite its vast potential, stem cell research has been condemned by some as disrespectful of the value of human life, and even as murder. Similarly, therapeutic cloning techniques have been attacked as unnatural and unethical, especially due to their close affiliation with reproductive cloning. The wide variety of opinions held throughout the globe has lead to a diverse spectrum of legal arrangements. Various governments have chosen to regulate this matter in various ways. Some have explicitly addressed the matter in primary legislation, while others have chosen more indirect ways of “resolving” the situation. Still others have chosen to “ignore” the problem by neglecting to establish a clear legal policy. This article reviews the various ethical and legal perspectives held with regard to these controversial fields and suggests the preferability of one particular ethical tendency and one particular method of regulation.
An Examination of the Authority of the Military Commander to Requisition Privately Owned Land for the Construction of the Separation Barrier
Authors: Keidar Nir
Published: February 2016

This paper examines the authority of the Military Commander to requisition privately owned land for the construction of the Separation Barrier within the West Bank, which is held through a regime of belligerent occupation. The examination focuses on Article 52 of the Hague Regulations, which deals with the issue of requisitions in kind. Moreover, the relationship between Articles 23(g) and 52 of the Hague Regulations is discussed, in light of the ICJ's decision whereas Article 23(g) is irrelevant after the close of active hostilities. This paper argues that while Article 52 grants the Military Commander the authority for such requisitions, Israel must demonstrate in each specific case that there a specific duty of the army of occupation which gives rise to a specific need of the army of occupation, in accordance with Article 52. The relevant decisions of the International Court of Justice and the Israeli High Court of Justice (HCJ) are examined, especially the High Court of Justice's Beit Sourik judgments and the International Court of Justice's Legal Consequences case.
Human Rights, Democracy, and the Inescapability of Politics; or, Human Dignity Thick and Thin
Authors: Mirsky Yehudah
Published: February 2016

The essay places the ICJ opinion in a broader legal and political context and argues that the failure to distinguish between democratic and non-democratic regimes characterizing the ICJ advisory opinion reflects broader trends with potentially ruinous consequences for the enterprise of human rights promotion itself. The ICJ opinion's willful ignoring of Israel's democratic character yielded a tendentious and inconsistent ruling. By contrast the Israel High Court of Justice's decision invalidating portions of Israel's security wall reflects a healthy understanding of a democracy's needs and limitations, as reflected in that court's proportionality standard of review. The ICJ willingly blurred crucial distinctions between democratic regimes that genuinely adhere, however imperfectly, to principles of human rights in their own governance, and those states and actors that do not, a distinction made all the more imperative by the events of September 11.

The judicialization of human rights in the post-Cold War era takes place against the background of a tensile relationship between human rights advocacy and democracy promotion during the Cold War. While human rights represent an essentially legal idea, democracy a political idea. In closing, the essay lays out one basic, hopefully workable, conceptual division of labor between human rights and democracy as complementary elements of a broader project of human dignity, in which human rights represents a “thin” universal conception of human dignity, while democracy offers a process whereby that conception can be “thickened” in various political, social and cultural contexts around the globe.
Administering the Territories: An Inquiry into the Application of International Humanitarian Law by the IDF in the Occupied Territories
Authors: Cohen Amichai
Published: February 2016

This article seeks to evaluate Israel's implementation of the international law of occupation in the territories which it came to control after the Six-Day War, from a new perspective. Many scholars have criticized or justified specific Israeli policies by comparing them to specific norms of international law. Contrary to this scholarship, this article addresses the questions at the core of current debates over the implementation of international law: Why has Israel chosen to implement some specific rules of international law and to ignore others? And what caused the changes in Israel's implementation of international law?

Some of the answers to these questions can be found by examining the interests of various institutions involved in the implementation of International law, and the interplay between them. I suggest that in order to understand Israel's initial behavior one must look at the interests, goals and culture of the Israeli army, the IDF, the institution initially responsible for administering the territories. I shall further argue that subsequent changes in policies are a result of the struggle between the IDF and other Israeli institutions attempting to gain influence over the way the territories were controlled.
Rewrite Copyright: Protecting Creativity and Social Utility in the Digital Age
Authors: Chused Richard H.
Published: February 2016

Debate about the impact of modern technology on copyright law has become polarized—even harsh. Owners, with some justification, contend that copying has become too easy and that strong protections for their assets must be implemented in order to insure the continued production of creative work. Users respond, with some justification, that such strong protections place intolerable constraints on their rights to browse in digital space, of contemporary culture and fairly use copyright works. The form of the debate—with both sides raising valid problems and neither finding an easy solution inside the existing structure of copyright law—suggests a need to rewrite copyright to insure remuneration to copyright owners while still providing easy, cheap access for users.

The most viable method for achieving such a goal is to institute a wide ranging system of levies on all devices and media that make it possible to quickly and easily copy protected copyright subject matter. In return for the payment of levies, owners would be required to allow users undisturbed access to their copyrighted works. This paper uses the sometimes checkered history of American copyright law as a vehicle for discussion of the problems technology presents to contemporary intellectual property law, the need for a levy system, the most significant requirements of a levy system and the nature of objections likely to arise to use of such a system.
Judicial Independence: The Threat from Within
Authors: Agmon-Gonnen Michal
Published: February 2016

In a democratic country an independent justice system plays a major role in protecting human rights and the rule of law. However, an independent judicial system is at risk from a number of factors that derive from outside the sytsem as well as from within. The external dangers facing judicial independence are often discussed; whereas the internal perils that weaken the system as well as judicial independence, are far less known. This article will focus on the danger from within and will discuss the judicial administration's influence on human rights, specifically the right to due process under the law.
Public Perceptions of Crime Seriousness: A Comparison of Social Divisions in Israel
Authors: Herzog Sergio
Published: February 2016

Crime seriousness research indicates that respondents from varying social and cultural groups rank the perceived seriousness of offenses similarly, with violent offenses as the most serious, followed by property, economic, and victimless offenses. It has also consistently been found, however, that the specific ratings of offenses by respondents from different social groups often differ. Because Israel is considered a deeply divided society, this article focuses on the comparison of public perceptions of the seriousness of varied criminal offenses between respondents belonging to varying central social groups in the countiy. As expected, the findings show similar, albeit not identical, rankings of offenses and important differences in the rating of specific offenses across groups. These findings are interpreted in the context of the Israeli society.
Privatization of Prisons in Israel: Gains and Risks
Authors: Timor Uri
Published: February 2016

The Knesset recently authorized privatized prisons in Israel. The rationale is primarily economic, based on claims of savings as high as 25%. However various studies contradict each other with regard both to cutting costs and to the efficacy of privatization. Not all agree that quality of life, daily functioning, and the quality of educational and rehabilitative activities are better in privatized than public prisons. The Ministries of Finance and Internal Security decided on privatization for financial reasons without holding a meaningful public debate on the social, value-based and moral aspects. One such question is whether it is appropriate for the state to transfer coercive power over prisoners lacking autonomy to private parties motivated by economic interests who could possibly exploit their power to profit at the expense of the prisoners' living conditions, treatment, training and rehabilitation upon return to the community. The notion of justice will likely suffer when subordinated to private profit motives. The Privatization of Prisons Law in Israel partially discusses these problems by means of various clauses that restrict the possibility of harming prisoners rights and require care, education and rehabilitative activities, in addition to requiring strict supervision over activities in privatized prisons. However, in Israel, public supervision of privatized entities is inadequate. The rigor of the law is seldom invoked with private parties who violate laws or the terms of contracts they themselves have signed. Hence, the effectiveness of supervision is also somewhat suspect. The disadvantages of privatization render its merits questionable when compared with Israel's current public prisons system. Despite extreme overcrowding and substandard facilities in some Israeli prisons, these function reasonably well. There is relatively little violence, and prisoners enjoy care, education, and vocational training. We may conclude that it is preferable to improve facilities in public prisons, expanding them and strengthening their rehabilitative orientation. This can be done by partially privatizing the care, education and rehabilitation components as well as the services and maintenance, while leaving the security and administration in the hands of the Prison Service.
Equality and the Dialectic Between Identity and Difference
Authors: Rosenfeld Michel
Published: February 2016

Modern equality as derived from the Enlightenment has always had problems with difference. Whereas feudalism set inequality as the baseline, modern society sets equality as the baseline, but allows for unequal treatment based on differences. Thus, differences among the sexes have been invoked to treat women as inferiors and racial differences to deprive racial minorities of equal treatment. Liberalism has countered these moves by promoting a conception of equality as identity according to which race or gender-based differences are irrelevant for purposes of political participation or employment. More recent claims for equality based on identity politics which call for a type of equality that accounts for differences pose vexing problems for liberalism. How should liberalism handle this? By creating exceptions to generally applicable laws? By promoting group-based autonomy and self-government at the risk ofbalkanizing the polity? Or, on the contrary, by rejecting demands for recognition of differences and reinforcing equality as identity? After analyzing the dialectic of equality, this Article argues that, based on commitment to the premise that all human beings share an equal status for possessing the same capacity for moral choice, pluralism offers a better framework than liberalism for the best possible reconciliation of identity and difference. This implies a departure from the monolithic nation-state toward multi-layered interconnected centers of collective autonomy and self-government.
The (Lack of) Economic Analysis by Courts in Israeli Antitrust Cases Concerning Restraints of Trade
Authors: Gilo David
Published: February 2016

This Article shows that Israeli case law refrains from economic analysis of harm to competition when it comes to determining whether agreements are antitrust violations. It also shows that the antitrust agency seems, de facto, to be content with the fact that courts tend not to conduct economic analysis in antitrust cases. Moreover, it shows that many times the antitrust agency itself initiated interpretations of the statute that set a broad range of per se prohibitions that do not require economic analysis. I hypothesize that the reason that the antitrust agency is content with the lack of economics analysis stems from the fact that broad per se prohibitions assist the agency in its role as a major litigator of antitrust cases. They also cause many of the business transactions to be subject to ex ante review by the antitrust agency, thereby enhancing the agency's regulatory powers. After fifteen years of broad per se prohibitions, courts concerned with the opportunism of parties began interpreting the statute to enable per se legality in many cases. It was only then that the antitrust authority responded by helping to propose an amendment that would make the statute less vague.
Relaxed Formalism: The Validation of Flawed Wills
Authors: Menashe Doron
Published: February 2016

This Article analyzes the probative standard set by Section 25 of the Succession Law, which, provided that certain basic conditions are met, enables the validation of flawed wills. The Article presents the position taken by the Supreme Court, according to which Section 25 requires that prior to its validation, the authenticity of a will be proven beyond any doubt. This standard is criticized as impracticable and normatively flawed, as is another standard, suggested by some Supreme Court Justices, which would impose on those wishing to validate a flawed will a standard of proof similar to that required in criminal law.

The Article then attempts to create a desirable model for the probative standard found in Section 25. This model is based on disutility equations for decision-making under conditions of uncertainty; it leads to the conclusion that the standard that should be required in order that flawed wills be validated is considerably lower than that demanded by today s case law. The Article claims that there is no significant risk that testators might be led to disregard or neglect the formal requirements set by the Succession Law for writing wills.

In conclusion, some arguments are presented in support of a revolutionary hypothesis: I suggest that the Supreme Court's interpretation of Section 25 reflects an ideology that prefers the mode of asset distribution prescribed by inheritance law over alternative modes, created by individual wills. The Court's preference, however, is not grounded (and cannot reasonably be grounded) in the desire to fulfill the testator's wishes; but rather perhaps it is an expression of the legal system's conception of distributive justice.