Professor Yoav Dotan Discusses His Latest Book

Professor Yoav Dotan’s latest book, entitled Lawyering for the Rule of Law, will be published shortly by Cambridge University Press * We met Professor Dotan to chat about his book, which examines the transformation that occurred in the High Court of Justice Department (HCJD) of the State Attorney’s Office following Israel’s “constitutional revolution” * Does the department serve the government, the public or the court? * Professor Dotan summarizes the main conclusions from his study, and took the opportunity to reminisce about his student days   

“In the mid-1990s, I already realized that the High Court of Justice (HCJD) in the State Attorney’s Office is a kind of nerve center for decision making in many different senses.” This is the summary Professor Yoav Dotan offers for the study presented in his latest book, Lawyering for the Rule of Law, which is due to be published shortly by the prestigious Cambridge University Press. The book discusses the transformation undergone by the HCJD following the rise of judicial activism and the constitutional revolution in the Supreme Court, as well as the ways in which this change has shaped public litigation in Israel.

What is special about the HCJD?
“My interest in the department as the object of academic inquiry began some 20 years ago when I worked as an attorney in the department for a brief period after completing my doctorate. From the perspective of both the administrative authorities and the court, the department’s function extends well beyond the standard definition of representing the government or the authorities before the court. Many processes by which the High Court of Justice influences government policy are moderated or mediated by the HCJD.”

What aspects does your book focus on?
“I examine the work of the HCJD on several levels, including the constitutional and theoretical plane as well as a historical review of its development and a qualitative and empirical analysis. My study is based on a very large sample of cases from the 1970s and the 1990s. The 1980s, of course, saw considerable change in the way the High Court of Justice functions. This period, which can be referred to as the breakthrough of judicial activism, saw the removal of restrictions on legal and judicial standing, the development of the grounds of reasonableness, the expansion of judicial review, and other changes. I wanted to examine how these changes were reflected in the practices and outcomes of the court hearings on the basis of a comparison of the period before and after this era of change.

What did your study show?
“We can see a dramatic increase in the scope of litigation in the High Court of Justice between the 1970s and the 1990s. My hypothesis is that the department adapted itself both in practical and ideological terms to the new role the court defined for it in the 1980s. The department focused not only on providing optimum representation for the government but also on helping the court to expand its sphere of influence over the governmental bureaucracy.”

“Babysitting” Petitions

“In quantitative terms, the most dramatic and significant difference between the 1970s and the 1990s is the growth in petitions in which the state agrees to a settle. The jump in the rate of settlements is remarkable. We can also see changes in other aspects, such as the positions adopted by the state. In the 1990s, the initial position presented to the court by the State Attorney’s Office does not always call for the unequivocal rejection of the petition. In many cases, its position reflects a position that is independent from that of its client. This could be termed a more ‘statist’ position.”

How do you explain this difference in positions?
“I compare the outcomes of proceedings involving the HCJD with those of other authorities that are not represented by the department – mainly local authorities. In the latter case, we do not see the same process of change. I think my study shows in very clear quantitative and qualitative terms that the change that occurred in litigation was due to changes in the HCJD itself. Over the 1990s, we can see that a very wide gulf emerges, of about one to five, in the issuing of conditional decrees by the High Court of Justice against local authorities as opposed to the authorities that are represented by the HCJD. Anyone who is familiar with litigation before the High Court of Justice knows that a petition that does not secure even an conditionaldecree is one that has effectively been rejected out of hand, whereas a petition that secures such an order moves forward to a full hearing. This is a very critical point in the litigation. This shows that by comparison to petitions in which the HCJD presents its position, the court believes that the petition can be resolved without the need for a full hearing.”

This change could also lead to another de facto change, with the State Attorney’s Office moving to the front of the stage
“That’s right. One of the examples I analyze is the story of the rights of the Bedouins in the unrecognized villages in the Negev. Since the late 1990s, the High Court of Justice has virtually revolutionized government policy toward these villages. In the final analysis, this is a policy that has been directed by the HCJD.”

Can a reverse effect also be seen on the High Court of Justice?
“Today, the court itself refers to this phenomenon by means of the phrase coined by Justice Rubinstein – ‘babysitting petitions.’ The court functions as a ‘babysitter’ for the administrative authority, using a pending petition to make it adopt policy that tilts the situation in a direction that the court believes is necessary. This is far removed from our traditional perception of the court as an institution that provides immediate relief. Today, the court creates change in government policy through ongoing supervision. My argument is that the court could not do this without the cooperation of the HCJD.” [See also the interview in this issue with Supreme Court President (ret.) Dorit Beinisch, who also discusses the reasons why so many petitions are rejected or end without the need for a ruling].

Four Decades of Information

Professor Dotan has been involved in his field for many years and has collected an impressive database relating to some four decades of rulings by the High Court of Justice. Although he only began to write his latest book last year, it was preceded by a process of thorough research that is only partially reflected in the final product.

How do you set about executing such a huge task?
“I have always collected a huge quantity of data, and I continue to do so – particularly data based on the analysis of High Court of Justice cases. I examined the actual court files (and not only the electronic databases) – that’s a great deal of work. I also examined the pre-petition files (i.e. internal files of the HCJD in which the HCJD deals with petitions even before they are filed to the Court) and conducted many dozens, if not more, of in-depth interviews with attorneys from the HCJD, staff members from the State Attorney’s Office, judges, and attorneys who represented petitioners – all the players in the process. I should also take this opportunity to thank my many research assistants who spent long days in dusty archives. I won’t mention them by name, simply because there have been so many of them over the years. They were all students at our Faculty and they all performed excellent work in a thorough and responsible manner.”

What’s next?
“No promises, but I think one of my next projects will be a book about the High Court of Justice itself. I’m planning to write the book in Hebrew. If this idea goes ahead, I will be able to draw on the databases that I only used partially in the current project. But I’m not sure about it – time will tell!”

Supreme Court President Asher Grunis and Professor Yoav Dotan

Memories of Undergraduate Days

Our conversation shifts from future plans to the more distant past. Professor Dotan has a long and rich history at the Faculty of Law of the Hebrew University. He began as an undergraduate student “straight after the army – one day you’re a soldier in uniform, the next you find yourself at the Faculty,” he recalls. He came back to the Faculty for his doctorate degree, joined the Faculty and even served as dean from 2005 to 2009. During the interview we chatted about his experiences as a Faculty student and his thoughts about today’s students.

What was it like for you when you began to study in the Faculty?
“The story I usually tell new students who come to the Faculty is that the main thing I remember from my first week was being hungry all the time. I didn’t know where the cafeteria was in the building and I just walked around hungry.”

What about the studies themselves?
“Basically I remember this period as a fairly happy one. Above all I enjoyed the intellectual experience of studying with people I strongly admired and saw as intellectual giants. I found the studies eye-opening and enlightening and I really threw myself into them.”

Had you already decided at this stage that you would have an academic career?
“No, that wasn’t my plan. I think I only began to consider the academic track after I traveled to UC at Berkeley for my master’s degree. As an undergraduate student, I always assumed I would follow the usual professional track.”

What aspects of the studies themselves stick in your mind?
“Even as an undergraduate student I liked public law. My teacher for constitutional law was Shimon Shetrit, and my lecturers for administrative law was Claude Klein, assisted by Manny Mazuz, who I would meet again when I worked in the HCJD. In terms of public law I was also an autodidact – I read a lot and learned things by myself, beyond the materials we were assigned in class.”

How would you compare the atmosphere in the Faculty today compared with your time as a student?
“The atmosphere in the Faculty was a bit different from what I gather from today’s students. Today’s students often complain about excessive competitiveness, but I think that law schools are competitive almost by definition. There have been studies about this. But my experience as a student wasn’t so competitive. The atmosphere was less stressful. I don’t really understand why today’s students feel so stressed and I am trying to fight this tendency.”

How were your relations with your year class?
“Well first and foremost – I met my wife in the Faculty! I think at least 15 couples from my year class got married. Some of my best friends – people I see almost every week at social events – studied with me in the Faculty. These are friendships that have survived to this day, at least in some cases.”

Maybe that explains why the atmosphere was more relaxed
“Perhaps. There’s something irrational about the way people feel now. It isn’t as though we didn’t feel pressure from the job market. On the contrary, it was very hard to be admitted for law studies at the time, and there were only a few institutions in Israel that taught the subject – the Hebrew University, Tel Aviv and Bar Ilan. But once you’d got in, you more or less knew that you wouldn’t have a serious problem finding a position in the market.”

How about today?
“I don’t think the situation has changed, at least not for students from this Faculty. Today, too, it is not easy to be admitted. But once you’ve got in, you won’t have a problem finding an excellent position in the legal profession. That’s why I really don’t understand why we always hear this story of pressure from the students.”

What about the relationship between the students and the Faculty?
“I think that today the Faculty does quite a lot to look after its students and invests more energy, resources and attention in the average student – or in all the students, actually – than it did when I was an undergraduate. I felt I received one of the best possible legal educations here. When I went on to work as an intern, I appreciated the tools I had been given here and I was grateful to my teachers for giving me the best tools a lawyer could have. But as individual students, we didn’t feel the Faculty was particularly interested in us, beyond simply teaching us law.”

Can you think of something the Faculty offers today that didn’t exist back then?
“Sure: the placement project. We assume responsibility for placing our students in the job market, wrapped up in cotton wool. It could hardly be easier. That wasn’t the case in my day. This is a classic example, but it isn’t the only one. As a Faculty member, I must emphasize that our approach is not to see the students as a kind of nuisance. We want them to be happy and to enjoy coming the Faculty. After all, the Faculty invests a lot of time and money – certainly by comparison to my days as an undergraduate. The student experience back then was very different. Today we have a different style of doing things. We seek to give the students the feeling that they are part of the Faculty.”