Crusades against Corruption and Institutionally-induced Strategies in the Israeli Supreme Court
2009; Taylor & Francis; Volume: 15; Issue: 3 Linguagem: Inglês
10.1080/13537120902983031
ISSN1743-9086
Autores Tópico(s)Legal and Constitutional Studies
ResumoClick to increase image sizeClick to decrease image size Notes 1. HCJ 1993/03. 2. HCJ 1993/03, see p. 434. 3. Ronen Shamir, '"Landmark Cases" and the Reproduction of Legitimacy: The Case of Israel's High Court of Justice', Law and Society Review, Vol. 24, No. 3 (1990), pp. 781–806; Yoav Dotan, 'Judicial Review and Political Accountability: The Case of the High Court of Justice in Israel', Mechkarei Mishpat, Vol. 32, No. 3 (1999), pp. 448–475; Omri Yadlin, 'Judicial Discretion and Judicial Activism as a Strategic Game', Bar-Ilan Law Studies, Vol. 19 (2003) pp. 665–721. 4. Forrest Maltzman, James F. Spriggs, Paul J. Wahlbeck and Paul J. Crafting, Law on the Supreme Court—The Collegial Game, Cambridge, 2000; Thomas Hammond, Chris W. Bonneau and Reginald S. Sheehan, Strategic Behaviour and Policy Choice on US Supreme Court, Stanford, CA, 2005; Jeffrey R. Lax, 'Constructing Legal Rules on Appellate Courts', American Political Science Review, Vol. 101, No. 3 (2007), pp. 591–604. 5. Lee Epstein and Jack Knight, Choices Justices Make, Washington, DC, 1998. 6. Howard Margolis, Selfishness, Altruism, and Rationality: A Theory of Social Choice, Cambridge, 1982; Douglass C. North, Structure and Change in Economic History, New York, 1981; Douglas C. North, Institutions, Institutional Change, and Economic Performance, Cambridge, 1990; Kenneth Shepsle, 'Institutional Arrangements and Equilibrium in Multidimensional Voting Models', American Journal of Political Science, Vol. 23, No.1 (1979), pp. 27–59. 7. Gretchen Helmke and Steven Levitsky, 'Informal Institutions and Comparative Politics: A Research Agenda', Perspectives on Politics, Vol. 2 (2004), pp. 725–740. 8. Gary, Cox, 'Centripetal and Centrifugal Incentives in Electoral Systems', American Journal of Political Science, Vol. 34 (1990), pp. 903–935. 9. Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action, Cambridge, 1990. 10. Walter Murphy, C. Herman Pritchett, Lee Epstein and Jack Knight, Courts, Judges, and Politics: An Introduction Judicial Process, Boston, 2006. 11. Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited, Cambridge, 2002. 12. See symposium concerning Jeffrey A. Segal and Harold J. Spaeth, 'The Influence of Stare Decisis on the Votes of United States Supreme Court Justices', American Journal of Political Science, Vol. 40, No. 4 (1996), pp. 971–1003. 13. Tracey E. George and Lee Epstein, 'On the Nature of Supreme Court Decision Making', American Political Science Review, Vol. 86, No. 2 (1992), pp. 323–337; Mark J. Richards and Herbert M. Kritzer, 'Jurisprudential Regimes in Supreme Court Decision Making', American Political Science Review, Vol. 96, No. 2 (June 2002), pp. 305–320. 14. James Madison, Federalist Papers, Cutchogue, NY, 1992. 15. Epstein and Knight, Choices. 16. Virginia A. Hettinger, Stephanie W. Lindquist and Wendy L. Martinek. 'Comparing Attitudinal and Strategic Accounts of Dissenting Behaviour in the U.S. Courts of Appeals', American Journal of Political Science, Vol. 48, No. 1 (2004), pp. 126–137. 17. William N. Eskridge, 'Reneging on History? Playing the Court/Congress/President Civil Rights Game', California Law Review, Vol. 79 (1991), pp. 613–684. 18. Gretchen Helmke, 'The Logic of Strategic Defection: Court–Executive Relations in Argentina under Dictatorship and Democracy', American Political Science Review, Vol. 96, No. 2 (2002), pp. 291–302; Matías Iaryczower, Pablo T. Spiller and Mariano Tommasi, 'Judicial Independence in Unstable Environments, Argentina 1935–1998', American Journal of Political Science, Vol. 46, No. 4 (2002), pp. 699–716; Georg Vanberg, 'Legislative–Judicial Relations: A Game-Theoretic Approach to Constitutional Review', American Journal of Political Science, Vol. 45, No. 3 (2001), pp. 346–361. 19. Jeffry A. Segal, 'Separation of Powers Games in the Positive Theory of Congress and Courts', American Political Science Review, Vol. 91, No. 1 (1997), pp. 28–44; Segal and Spaeth, The Supreme Court and the Attitudinal Model Revisited. 20. Maltzman et al., Crafting Law; Epstein and Knight, Choices; Murphy, Elements of Judicial Strategy, Chicago, 1964. 21. My formal model is to some extent similar in form to the one in Clinton (1994), with fundamentally different substance. The model presented here deals with strategic interactions within the court itself, between the justices (e.g. Gretchen Helmke and Mitchell Sanders, 'Modeling Motivations: A Method for Inferring Judicial Goals from Behaviour', The Journal of Politics, Vol. 68, No. 4 (2006), pp. 867–878. 22. Asher Arian, The Second Republic – Politics in Israel, Washington, DC, 1998. 23. C. Neal Tate and Torbjorn Vallinder (eds.), The Global Expansion of Judicial Power: The Judicialization of Politics, New York, 1995. 24. Arian, The Second Republic. 25. Martin Edelman, 'Israel', in Tate and Torbjorn (eds.), The Global Expansion of Judicial Power. 26. Barzilai Gad, Ephraim Yuchtman-Yaar and Zeev Segal, The Israeli Supreme Court and the Israeli Public, Tel Aviv, 1994. 27. Zeev Segal, 'HCJ Within the Framework of the Israeli Society—after 50 Years', Mishpat Umimshal, Vol. 5 (1999), p. 235. 28. Given the size of the ISC's docket, it is fair to assume that Israeli justices have their hands full. Because of the heavy workload, any additional task or procedure implies costs in terms of time and other resources. Additional Review, panel expansion and opinion writing are thus all costly. 29. Opinions can have an impact not only on jurists, but also on public officials, public opinion, interest groups and political parties (Murphy et al., Courts, Judges, and Politics). Dissenting opinions are potentially as consequential (e.g. Brandeis's dissenting opinion in Olmstead). 30. A dissenting opinion indicates disagreement on the panel. The norm of unanimity is meaningful to justices, Lee Epstein, Jeffrey A. Segal and Harold Spaeth, 'The Norm of Consensus on the US Supreme Court', American Journal of Political Science, Vol. 45, No. 2 (2001). And the pristine example is the adoption of this norm in the Marshall Court (see also Warren's unanimous Court in Brown). A dissenting opinion, therefore, while valuable (Assumption 2 above), is also costly by virtue of the deviation from the unanimity norm it entails. 31. Hammond et al., Strategic Behaviour. 32. Proof of proposition 1: Since the collegial game is modelled as a perfect information multi stage game I can employ sub-game perfection as my solution concept. Proposition 1 defines a sub-game perfect equilibrium where MJ applies, PC expands and MJ dissents. For this strategy profile to be a sub-game perfect equilibrium, players should not expect higher payoffs if they found themselves off the equilibrium path. This requires that PC expands if MJ writes. Therefore I must have and . Since for all U> − 1, I need for PC never to play 'not Convert' if MJ writes. By the same token, for PC never to play 'not Convert' if MJ applies, I need . This is always true for all CE >0. Now, for the MJ, MJ should find dissent profitable if PC expands the panel. This gives two conditions: and . Then, Φ MJ >(C D /D) guarantees that MJ will dissent. 33. Granted, agents might act strategically without alternative paths or secondary benefits. This, however, is true only as long as the subjective value of outcomes alone is sufficient to offset costs. 34. Proof of proposition 2: Similar to the proof of proposition 1, I just need to show that PC will always accept if MJ writes. Since MJ will always prefer his sincere opinion being accepted by the PC, as long as he knows PC will not expand to convert via Additional Review, he will play Write. Then I need, and this gives us the condition . As long as this condition is satisfied, strategy profile described in proposition 2 is a sub-game perfect equilibrium of the collegial game. 35. This might be part of the reason why past comparative judicial work structurally or functionally analysed courts and judiciaries as political institutions. 36. Indeed, more recent work, such as Lori Hausegger and Stacia Haynie, 'Judicial Decisionmaking and the Use of Panels in the Canadian Supreme Court and the South African Appellate Division', Law and Society Review, Vol. 37, No. 3 (2003), pp. 635–657, deals with aspects of the collegial game (in Canada and South Africa in this case), but in the theoretical framework employed in the current paper, it is the institutions that are fundamental to the understanding of why political actors act the way they do, March, J.G., and Olsen, J.P. 'The New Institutionalism: Organizational Factors in Political Life', American Political Science Review, Vol. 78, No. 3 (1984), pp. 734–749. Shpesle, K. 'Studying Institutions: Some Lessons from the Rational Choice Approach', Journal of Theoretical Politics, Vol. 1, No. 2 (1989), pp. 131–147. North, D.C. Institutions, Institutional Change, and Economic Performance, Cambridge University Press, 1990. 37. Murphy, Elements; Maltzman et al., Crafting Law; Hammond et al., Strategic Behaviour; Lax, 'Constructing Legal Rules'. 38. Jean Blondel, An Introduction to Comparative Government, New York, 1969; Theodore Becker, Comparative Judicial Politics, Chicago, 1970; Martin Shapiro, Courts, Chicago, 1981; Henry Walter Ehrmann, Comparative Legal Cultures, Englewood Cliffs, New Jersey, 1976; Mary L. Volcansek, 'Judges, Courts, and Policy Making in Western Europe', Western European Politics, Vol. 15, No. 1 (1992), pp. 1–8; C. Neal Tate and Stacia Haynie, 'Authoritarianism and the Functions of Courts: A Time Series Analysis of the Philippine Supreme Court, 1961–1987', Law and Society Review, Vol. 27 (1993), p. 707; Lee Epstein, Jack Knight and Olga Shvestsova, 'The Role of Constitutional Courts in the Establishment and Maintenance of Democratic Systems of Government', Law and Society Review, Vol. 35, No. 1 (2001), pp. 117–164; (Tate, 1993; Jacob, H., Blankenburg, E., Kritzer, H., Provine, D.M. and Sanders, J. (Eds.) Courts, Law and Politics in Comparative Perspective. New Haven, CT, 1996. Waltman, J.L. 'The Courts and Political Changes in Post-Industrial Socity', In Waltman and Holland (Eds.) The Political Role of Law and Courts in Modern Democracies. Houndsmill, Hampshire and London, 1988). 39. Howard Gillman, 'On Constructing a Science of Comparative Judicial Politics: Tate & Haynie's "Authoritarianism and the Functions of Courts"', Law and Society Review, Vol. 28, No. 2 (1994), pp. 355–376. 40. James L. Gibson, Gregory A. Caldeira and Vanessa A. Baird, 'On the Legitimacy of High Courts', American Political Science Review, Vol. 92, No. 2 (1998), pp. 343–358. 41. Lori Hausegger and Stacia Haynie, 'Judicial Decisionmaking and the Use of Panels in the Canadian Supreme Court and the South African Appellate Division', Law and Society Review, Vol. 37, No. 3 (2003), pp. 635–657. 42. Eskridge, 'Reneging on History'; Yadlin, 'Judicial Discretion and Judicial Activism'. 43. 403 U.S. 388. 44. 414 U.S. 338. 45. 468 U.S. 897. 46. 467 U.S. 431. 47. HCJ 1993/03. 48. HCJ 1993/03 49. Segal and Spaeth, The Supreme Court and the Attitudinal Model; Segal and Spaeth, 'The Influence of Stare Decisis'. 50. It goes without saying that justices on the majority or the PC himself did not endorse a different viewpoint on corruption. Yet in the greater scheme of things it seems that Barak deemed avoiding collision with the executive more important than the corruption issue in this case. 51. HCJ 3267/97 Amnon Rubinstein v. Minister of Defense. 52. HCJ 6055/95 Sagi Tzemach v. Minister of Defense. 53. HCJ 7015/02 Ajuri v. IDF Commander; HCJ 5100/94 Public Committee against Torture v. The Sate of Israel; HCJ 5016/96 Horev v. Minister of Transportation; HCJ 4804/94 Station Film v. The Film Review Board. 54. Gillman, 'On Constructing'. Additional informationNotes on contributorsUdi SommerAn earlier version of this paper was presented at the Annual Meeting of the Southern Political Science Association, January 2007, New Orleans, LA. The author is grateful to Eser Sekercioglu for generously sharing his expertise in formal models, and being such a great officemate. I would also like to thank Jeffrey Segal for helpful comments. Finally, without the support of Lee Koppelman and the Stony Brook Foundation, this project would not have been possible
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