Talia Fisher

Nomos Without Narrative

The three central themes underlying this issue of Theoretical Inquiries in Law—the privatization of law model, the legal pluralism paradigm, and multiculturalism — are united in their shared opposition, be it descriptive or normative, to the monopolistic concentration of law production power in the hands of the state. The three models focus on dispersion of the social ordering function amongst non-state agents. They advocate the claim that the state has not succeeded at securing a monopoly over law and/or should not secure a monopoly over law. On the policy front, as well, protagonists of the privatization of law model, scholars of the legal pluralism paradigm and writers in the multiculturalism tradition often unite in their plea for recognition of tribal courts or the expansion of the lawmaking capacity of local governments. However, despite their shared underlying assumption that the centralist state law model lacks normative appeal, these three bodies of research diverge significantly. The differences between them have been marginalized in the debate, because each of these models has essentially concentrated on conducting the dialogue with the state law model. Thus far, these models have been solely occupied with taking a particular stance against the centralization model of state law, and have failed to engage in any debate amongst themselves as representatives of alternative legal decentralization schemes. This Article attempts to partially fill the void, by pitting the multiculturalism model of legal decentralization against the privatization model. It will show that the differences in both models’ legal decentralization visions derive from conflicting ontological premises regarding law, community, social life, and the human subject. These theoretical distinctions, which will be drawn between the two decentralization models, have great bearing when considering the social units that ought to supplant the state in its lawmaking capacity.

Does the Judge Matter? Exploiting Random Assignment on a Court of Last Resort to Assess Judge and Case Selection Effects

We study 1410 criminal law cases appealed to the Israel Supreme Court in 2006 and 2007 to assess influences on case outcomes. A methodological innovation is accounting for factors — case specialization, seniority, and workload — that modify random case assignment. To the extent one accounts for nonrandom assignment, one can infer that case outcome differences are judge effects. Individual justices cast 3986 votes and differed by as much as 15 percent in the probability of casting a vote favoring defendants. Female justices were about two to three percent more likely than male justices to vote for defendants but this effect is sensitive to including one justice. Defendant gender was associated with outcome, with female defendants about 17 percent more likely than male defendants to receive a favorable vote on appeal. Our data’s full samples of mandatory and discretionary jurisdiction cases allow us to show that studies limited to discretionary jurisdiction case outcomes can distort perceptions of judges’ preferences. Justices’ ordinal rank in rate of voting for defendants or the State was uncorrelated across mandatory and discretionary jurisdiction cases. For example, the justice who sat on the most criminal cases was the fourth (of 16 justices) most favorable to the State in mandatory jurisdiction cases but the twelfth most favorable in discretionary jurisdiction cases. This result casts doubt on studies of judges on discretionary jurisdiction courts, such as the U.S. Supreme Court, in which votes in the selection process are not observed.

It’s for the Judges to Decide: Allocation of Trial Costs in Israel Report on Israel

The Israeli law governing cost and fee allocation diverges greatly from almost all other legal systems in the Western world (with the exception of South Africa) in that cost allocation is left entirely in the discretion of the court. Although in practice judges usually follow the “loser pays rule”, (Uri Goren, Civil Procedure Issues (Tenth Edition, 2009) 744.) this is not mandated by law and judges can, and sometime do, diverge from it, ordering the winning party to pay the losing party’s litigation costs. In terms of the amounts awarded, some rhetorical transformation has taken place. Historically, courts tended to disregard the actual amounts expended by winning parties on the litigation when awarding costs, leading to their substantial under-compensation. In recent years, following the “constitutional revolution” which also constitutionalized civil procedure, those both within and outside of the judicial system have increasingly argued that litigation costs should be more in line with actual costs. But the extent to which the rhetorical transformation will infiltrate actual reality remains to be seen. In what follows we provide some information and insights concerning the rules and decisions regulating the allocation of trial costs and reflect on their impact on access to justice as well as on the behavior of the parties to the litigation.