Yoav Dotan

LEGAL DEFEATS—POLITICAL WINS Why Do Elected Representatives Go to Court?

Why do political parties and politicians turn to litigation instead of using political channels in their efforts to affect public policies? Over the past 20 years, there has been a noticeable trend in which Israeli parties and politicians have turned to the courts for intervention in national and internal party affairs, government policies, and even parliamentary procedures. The authors argue that this phenomenon is tied to the growth of open competition within political parties on one hand and reforms in the legal doctrines controlling access to litigation on the other. This study indicates that politicians seek litigation even when their chances of winning in court are marginal. According to the findings, politicians exhibit a lower propensity to seek out-of-court settlements than other kinds of litigants. The results suggest that politicians resort to litigation to challenge majoritarian policies and also because they gain considerable media exposure (regardless of the actual outcome of litigation), enhancing their political stature.

Judicial Review and Political Accountability: The Case of the High Court of Justice in Israel.

The inter-relation between government policies, public opinion and court decisions are the subject of intense discussion in academic literature. Constitutional theorists maintain that courts are required to defend individual rights, especially minority rights. Courts are also expected to refrain from excessive interference in decision-making processes conducted by the other two branches of government. Both these themes are derived from the assumption that courts, unlike the legislature and the executive branch, are not representative institutions. They are not required to reflect the preferences of the majority in their decisions. Rather, the reverse is expected: to confront decisions which endanger the rights of minorities. The “success” of courts in maintaining their institutional autonomy — according to this view — is evaluated by their ability to withstand political pressures and effect their counter-majoritarian role. Political scientists, on the other hand, are concerned with the extent to which courts in fact fulfill this counter-majoritarian role. Some argue that the counter-majoritarian function of the court is no more than a doctrinal aspiration, perhaps even a myth. Constitutional courts, they argue, serve more to legitimize socio-political reforms and broader cultural propensities which were previously endorsed by the political establishment and public opinion, than to confront majoritarian decisions. Others maintain that, while courts are not wholly insulated from public opinion, they still manage, on many occasions, to retain their institutional autonomy vis-a-vis political pressures.

Public Lawyers and Private Clients: An Empirical Observation on the Relative Success Rates of Cause Lawyers

Cause lawyering is often criticized for creating an untenable tension between the professional obligations of the lawyer to the individual client and the lawyer’s ideological commitment to public causes. I sought to test empirically the validity of this argument by comparing the relative success rates of political lawyers and non-political lawyers in defending their clients’ interests in litigation concerning house-demolition orders before the Israeli High Court of Justice. I found that the general success rates of political lawyers in the research population were significantly higher than those of non-political lawyers. These findings can serve as an additional support for the various arguments in favor of cause lawyering.

Will Procurement Officials be Biased to Disregard Procurement Rules in Favor of a Low-priced, Albeit Defective, Bid?

To what extent are professional decision-makers in the field of public procurement susceptible to cognitive biases? Recent research found a bias in favor of the lower bidder when ranking competing bids (Dekel and Schurr 2014, “Cognitive Biases in Government Procurement – an Experimental Study with Real Bid Evaluators,” 10(2) Review of Law and Economics 169–200). In the present research we examine this question regarding another stage of the public procurement process – the qualification stage. To this end, we conducted a series of experiments with the participation of procurement officials in situations that closely resemble their daily work. Our main finding is that even though procurement officials are susceptible to a cognitive bias when they have to score competing bids, they overcome that bias when asked to decide whether to qualify faulty or questionable bids. We cautiously ascribe this difference to the different types of decision-making involved, and suggest further explorations of these insights.

Judicial Anti-Corruption Enforcement Can Enhance Electoral Accountability

Can court decisions affect electoral behavior? Can they enhance electoral accountability by signaling to voters that integrity considerations are important? In this paper we utilize a unique political-legal situation that emerged in 2013 shortly before the municipal elections in Israel. Then, the Israeli Supreme Court ordered the immediate removal of three mayors from their office after they had been indicted for charges of corruption. We take advantage of this unique setting to estimate the effect of anti-corruption judicial activity on electoral sanctioning of low-integrity incumbents. Relying on actual voting data from 65 Israeli cities for the 2008 and 2013 municipal elections, we apply a difference-in-difference estimation to test this effect. The results indicate that the electoral effect of judicial anti-corruption activity on the vote-share of low-integrity incumbents is negative and substantively significant. We further demonstrate that this effect is not the result of a change in turnout. These findings suggest that the integrity salience cue created by the court’s actions caused the biggest recorded effect on electoral sanctioning of corruption, suggesting that these judicial bodies carry the capacity to influence electoral behavior.