Lawyering for the Rule of Law: Government Lawyers and the Rise of Judicial Power in Israel

227 Pages·2014·2.84 MB·English

by  Yoav Dotan

LAWYERING FOR THE RULE OF LAW
L awyering for the Rule of Law introduces a new model of government law-
yering in which government lawyers function as an ancillary mechanism
that enables the court to expand its inl uence on policy-making within
the political branches by forming out-of-court settlements. It discusses
the centrality of government lawyers with regard to judicial mobilization
and the enforcement of social reforms through adjudication, and sheds
light on particular functions of government lawyers as adjudicators and
facilitators of institutional arrangements. It also discusses the ethical
and professional dilemmas of government lawyers in judicial review and
the relationship between lawyers’ professional morality and outcomes in
litigation.
Y OAV DOTAN is Edwin A. Goodman Professor of Law and former Dean of
the Faculty of Law at the Hebrew University of Jerusalem.
CAMBRIDGE STUDIES IN CONSTITUTIONAL LAW
h e aim of this series is to produce leading monographs in constitutional
law. All areas of constitutional law and public law fall within the ambit of
the series, including human rights and civil liberties law, administrative
law, as well as constitutional theory and the history of constitutional law.
A wide variety of scholarly approaches is encouraged, with the governing
criterion being simply that the work is of interest to an international
audience. h us, works concerned with only one jurisdiction will be
included in the series as appropriate, while, at the same time, the series
will include works which are explicitly comparative or theoretical – or
both. h e series editors likewise welcome proposals that work at the
intersection of constitutional and international law, or that seek to
bridge the gaps between civil law systems, the US, and the common law
jurisdictions of the Commonwealth.
Series Editors
David Dyzenhaus
Professor of Law and Philosophy,
University of Toronto, Canada
Adam Tomkins
John Millar Professor of Public Law,
University of Glasgow, UK
Editorial Advisory Board
T. R. S. Allan
Cambridge, UK
Damian Chalmers
LSE, UK
Sujit Choudhry
Toronto, Canada
M onica C laes
Maastricht, Netherlands
D avid C ole
G eorgetown, USA
K. D. Ewing
K ing’s College London, UK
David Feldman
Cambridge, UK
Cora Hoexter
W itwatersrand, South Africa
Christoph Moellers
Goettingen, Germany
A drienne S tone, M elbourne, Australia
A drian V ermeule, H arvard, USA
Books in the series:
Lawyering for the Rule of Law: Government Lawyers and the Rise of Judicial Power in
Israel Yoav Dotan
B alancing Constitutional Rights: h e Origins and Meanings of Postwar Legal Discourse
J acco B omhof
J udges on Trial: h e Independence and Accountability of the English Judiciary Shimon
S hetreet and S ophie T urenne
P roportionality and Constitutional Culture M oshe C ohen-Eliya and I ddo P orat
h e Politics of Principle, h e First South African Constitutional Court, 1995–2005
h eunis R oux
h e New Commonwealth Model of Constitutionalism, h eory and Practice S tephen
Gardbaum
S earching for the State in British Legal h ought, Competing Conceptions of the Public
Sphere Janet McLean
J udging Social Rights Jef King
P roportionality, Constitutional Rights and their Limitations Aharon Barak
P arliamentary Sovereignty, Contemporary Debates Jef rey Goldsworthy

LAWYERING FOR
THE RULE OF LAW
Government Lawyers and the Rise of
Judicial Power in Israel
YOAV DOTAN
University Printing House, Cambridge CB2 8BS, United Kingdom
Published in the United States of America by Cambridge University Press, New York
Cambridge University Press is part of the University of Cambridge.
It furthers the University’s mission by disseminating knowledge in the pursuit of
education, learning and research at the highest international levels of excellence.
www.cambridge.org
Information on this title: w ww.cambridge.org/9781107625907
© Yoav Dotan 2014
h is publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
F irst published 2 014
Printed in the United Kingdom by CPI Group Ltd, Croydon CR0 4YY
A catalogue record for this publication is available from the British Library
L ibrary of Congress Cataloguing in Publication data
Dotan, Yoav.
Lawyering for the rule of law : government lawyers and the rise of
judicial power in Israel / Yoav Dotan.
pages cm. (Cambridge studies in constitutional law; 9)
ISBN 978-1-107-03899-8 (hardback) ISBN 978-1-107-62590-7 (paperback)
1. Political questions and judicial power–Israel. 2. Government attorneys–Israel. I. Title.
KMK2244.D68 2013
347.5694–dc23
2013023923
I SBN 9 78-1-107-03899-8 Hardback
ISBN 978-1-107-62590-7 Paperback
Cambridge University Press has no responsibility for the persistence or accuracy of
URLs for external or third-party internet websites referred to in this publication,
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
For Shlomit

CONTENTS
A cknowledgments page x
L ist of i gures x i
L ist of tables x ii
Introduction: h e government’s lawyer 1
1 h e Israeli legal system and the rise of judicial activism
in the High Court of Justice 14
2 h e High Court of Justice Department (HCJD):
overview and history 51
3 Litigating for the government 87
4 h e dilemma of serving two masters 119
5 Sorting things out: government lawyers in
transformative litigation 147
6 h e government lawyer as adjudicator: “pre-petitions”
and the HCJD 172
Conclusion 188
Table of cases 1 91
B ibliography 195
I ndex 208
ix