Between Europe and the United States: The Israeli Supreme Court in Comparative Perspective

Despite a shared commitment to constitutional norms and a shared intuition that constitutional norms reflect universal principles, the United States and Europe interpret constitutional norms in markedly different ways. To take but one example, European privacy norms are shaped largely around the concept of dignity and inherited ideas of honor, whereas American privacy norms have historically rested on the value of liberty, especially liberty vis-à-vis the government. Both systems shape constitutional norms against the background of their distinct social and political traditions.

Israel is poised between these two older legal cultures and is in dialogue with both. Does Israeli constitutional jurisprudence share more with Europe or with the United States?  Do particular social and political ideas within Israeli legal culture account for the disparate alliances?  What are the particular areas in which Israel shows an affinity for one or the other, or neither, legal tradition? 

This day-long international conference will feature a keynote address by Justice Isaac Amit and three panels of distinguished scholars.  The full schedule follows.

8:30 – 9:00 a.m.  Breakfast and Registration

9 – 9:15 a.m. Welcoming Remarks
     Dean Melanie Leslie, Cardozo School of Law
     Michael Herz, Cardozo School of Law

9:15 – 11:00 a.m.  Panel 1 - Proportionality Review: Overt, Covert, or Nonexistent?

Going back to Aristotle, the concept of proportionality has played a central role in our understanding of justice and our definition of equality.  Most generally, proportionality encompasses two distinct relations: fit and balance.  First, are the means designed to pursue an objective properly tailored to the desired end?  Or are they excessive, wasteful or unduly oppressive?  Second, do the benefits to be gained by a policy or action outweigh the correlative burdens that are bound to ensue?  In Europe and Israel, proportionality review is a central and explicit aspect of the judicial task.  In the United States, judges are skeptical of this approach, though many would argue that it occurs, just without acknowledgement.  This panel will consider both broader questions of proportionality review and its particular expression(s) in the jurisprudence of the Israeli Supreme Court.

Panelists
     Mark Kende, Drake Law School, Des Moines, IA
     Barak Medina, Hebrew University of Jerusalem, Israel
     Iddo Porat, College of Law and Business, Ramat Gan, Israel
     Gila Stopler, College of Law and Business, Ramat Gan, Israel
     Gaia Bernstein, Seton Hall School of Law, Newark, NJ (moderator)

11:30 a.m. – 1:15 p.m.  Panel 2 - Dignity as a Constitutional Concept

Many European Constitutions expressly protect dignity; Article I, § 1 of the German Constitution declares: “Human dignity is inviolable.  To respect and protect it is the duty of all state authority.”  In contrast, the term “dignity” does not appear in the United States Constitution.  American judges have been slow to develop a jurisprudence of dignity—though the term features prominently in recent decisions regarding same-sex relationships—and many fear that the concept is more dangerous than protective.  The American tradition is more focused on liberty.  In some ways, Israel straddles the two traditions—after all, the most important of Israel’s Basic Laws is entitled “Human Dignity and Liberty."  But in practice dignity, a concept arguably rooted in inherited European traditions about personal honor, has a more central role than liberty in Israeli jurisprudence. This panel will consider the strengths, weaknesses, and overall role of dignity in different constitutional traditions. 

Panelists:

     Avishai Benish, Hebrew University of Jerusalem, Israel
     Leslie Meltzer Henry, University of Maryland, Carey School of Law
     Eric Hilgendorf, University of Wurzburg, Germany
     Doron Shultziner, Hadassah Academic College, Jerusalem, Israel
     Julie Suk, Cardozo School of Law, New York, NY (moderator)

1:15 – 2:30 p.m.  Lunch
Lunch will be provided for all attendees.

2:30 – 3:00 p.m.  Presentation on the Israeli Supreme Court Project
     Michael Herz
     Ari Mermelstein
     Orly Rachmilovitz
     Suzanne Stone

3:00 – 4:45 p.m.  Panel 3 -- Government Participation in the Marketplace of Ideas: Government Speech and Government Funding of Private Speech

Although the details vary, Europe, the United States, and Israel all have fairly robust protections for private speech from government interference.  Most fundamentally, the state cannot privilege some speech over other.  As a regulator, the state must be neutral as between different messages and viewpoints.  But the terrain shifts when the government is not regulating but is itself speaking.  As a speaker, the government is rarely neutral.  And governments are vocal and active participants in public discourse.  Indeed, their unique ability to get their message heard could justify treating government speech like government regulation.  The U.S. Supreme Court is headed in just the opposite direction, increasingly relying on the principle that the government can say what it wants.  This panel explores the justifications for such an approach, the inescapable tensions between the divergent treatment of government as speaker and government as regulator of speech, and the particularly thorny problem of government funding of private speech.

Panelists:
     Ori Aronson, Bar-Ilan University, Ramat Gan, Israel
     Caroline Mala Corbin, University of Miami School of Law, Miami, FL
     Amnon Reichman, University of Haifa, Israel
     Adam Shinar, Interdisciplinary Center, Herzliya, Israel
     Michael Herz, Cardozo School of Law, New York, NY (moderator)

5 – 6 p.m. Keynote -- "From the Common Law Bill of Rights to Basic Laws: Constitutional Rights in Israel"
     Justice Isaac Amit, Supreme Court of Israel
     Alex Stein, Cardozo School of Law, New York, NY (commentator)
     Suzanne Stone, Cardozo School of Law, New York, NY (introductions)

6:00 – 6:30 p.m.  Reception