Administrative Law Commons^™

Carbon Dioxide And The Clean Air Act, Eric Schwartz

Cardozo Public Law, Policy & Ethics Journal

The EPA's authority to regulate CO2 under the Clean Air Act is supported by the statute's broad definition of "air pollutant" and judicial interpretations, including the Supreme Court's decision in Massachusetts v. EPA. The agency's initial reluctance to regulate CO2 was based on policy considerations, not legal limitations, and the Chevron doctrine requires courts to defer to the EPA's interpretation when Congress's intent is unclear. The ruling in Massachusetts v. EPA established that states have standing to challenge the EPA's failure to regulate CO2, emphasizing the importance of federal authority in addressing climate change. This decision has significant implications …

Morar V. Idf Commander In Judaea And Samaria, Dorit Beinisch, Eliezer Rivlin, Salim Joubran

Translated Opinions

Facts: The petitioners, who represent five Arab villages in the territory of Judaea and Samaria, claimed that the respondents unlawfully deny Palestinian farmers in those villages access to their agricultural land. The petitioners also claimed that the respondents do not act to prevent attacks and harassment perpetrated by Israeli inhabitants of the territory of Judaea and Samaria against Palestinian farmers and do not enforce the law against the Israeli inhabitants. In reply, the respondents explained that the agricultural land was closed only when it was necessary to protect the Palestinian farmers from harassment by Israeli inhabitants. The respondents also notified …

Dobrin V. Israel Prison Service, Ayala Procaccia, Esther Hayut, Salim Joubran

Translated Opinions

Facts: The second respondent (Amir) was convicted of the murder of the late Prime Minister Yitzhak Rabin and was sentenced to life imprisonment. While in prison, he married the third respondent. When the first respondent refused, on security grounds, to allow Amir conjugal visits with his wife, Amir applied to the first respondent to be allowed to provide his wife with a sperm sample for the purposes of artificial insemination. The first respondent granted his request.

The petitioners, two members of the Knesset, consequently filed the petition, arguing that the first respondent did not have any authority in statute to …

Kav Laoved Worker’S Hotline V. Government Of Israel, Edmond E. Levy, Mishael Cheshin, Aharon Barak

Translated Opinions

Facts: The government of Israel adopted a policy of allowing foreign workers to come to work in Israel. The residence permits given to the foreign workers are conditional upon the foreign workers working for a specific employer (‘the restrictive employment arrangement’). Consequently, if the worker leaves his employer, he automatically becomes an illegal alien, and is liable to be arrested and deported. The petitioners attacked this policy, on the grounds that it violates the dignity and liberty of the foreign workers. It also undermines the bargaining power of the foreign workers in the employment market. The respondents replied that the …

Foster Children Paying For Foster Care, Daniel L. Hatcher

Cardozo Law Review

No abstract provided.

Council For Higher Education V. Haaretz, Esther Hayut, Aharon Barak, Dorit Beinisch, Eliezer Rivlin, Miriam Naor, Salim Joubran, Mishael Cheshin

Translated Opinions

Facts: In the first case, HaAretz Newspaper Publishing submitted a request to the Council for Higher Education for information. The Council gave HaAretz copies of decisions it had made, but refused to allow it access to the minutes of meetings. HaAretz therefore applied to the District Court to order the Council to grant it access to the minutes of the meetings.

In the second case, the Shachar Organization for the Advancement of Education in Israel applied to the Council for a licence to open an institute of higher education in Ashkelon. When the Council refused the licence, Shachar applied to …

Catch 1201: A Legislative History And Content Analysis Of The Dmca Exemption Proceedings, Bill D. Herman, Oscar H. Gandy Jr.

Cardozo Arts & Entertainment Law Journal

17 U.S.C. § 1201(a)(1) prohibits circumventing a technological protection measure (TPM) that effectively controls access to a copyrighted work. In the name of mitigating the innocent casualties of this new ban, Congress constructed a triennial rulemaking, administered by the Register of Copyrights, to determine temporary exemptions. This paper considers the legislative history of this rulemaking, and it reports the results of a systematic content analysis of its 2000 and 2003 proceedings.

Inspired by the literature on political agendas, policymaking institutions, venue shifting, and theories of delegation, we conclude that the legislative motivations for § 1201 were laundered through international treaties, …

Antidiscrimination Law In The Administrative State, Julie C. Suk

Articles

The article argues that antidiscrimination law in the U.S. should shift its focus from corrective justice, which addresses individual wrongs, to distributive justice, which aims to eradicate systemic inequalities and promote equal opportunities. This shift would require enhancing the role of administrative agencies, such as the EEOC, to enforce antidiscrimination laws more effectively through proactive regulation and rulemaking. The article draws on the British model, where administrative agencies have stronger enforcement powers, to suggest reforms for the EEOC.

Mara’Abe V. The Prime Minister Of Israel, Aharon Barak, Dorit Beinisch, Ayala Procaccia, Edmond E. Levy, Asher Grunis, Miriam Naor, Salim Joubran, Esther Hayut, Mishael Cheshin

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

According to orders by the military commander, a partition fence was erected that sorrounds the town of Alfei Menashe in all directions while leaving a road connecting the town to Israel. Several Palestinian villages are within the area surrounded by the fence. The fence cuts them off from the remaining areas of the West Bank and creates a landlocked cluster of villages on the …

Hotels.Com V. Zuz Tourism Ltd., Asher Grunis, Mishael Cheshin, Edna Arbel

Translated Opinions

Facts: The applicant and the first respondent entered into an exclusive marketing agreement in February 2000. This agreement contained an arbitration clause stating that disputes between the parties would be resolved by arbitration which shall take place in Texas. In June 2002, the first respondent filed an action in Israel against the applicant and the second respondent, on the grounds that the second respondent was marketing the services of the applicant contrary to the agreement. The applicant filed a motion for a stay of proceedings on account of the arbitration clause in the agreement. The District Court denied the application, …

State Of Israel V. Jerusalem Magistrates Court, Dorit Beinisch, Mishael Cheshin, Aharon Barak

Translated Opinions

Facts: The third respondent (‘the respondent’) was indicted in the Jerusalem Magistrates Court for an offence of committing an indecent act. The victim of the alleged offence (‘the complainant’) kept a personal diary and the parts that were relevant to the period during which the complainant and the respondent were acquainted with one another were photocopied and sent to counsel for the respondent.

Counsel for the respondent applied to inspect the whole diary under s. 74 of the Criminal Procedure Law. The Magistrate Court ordered the prosecution to produce the whole diary for inspection by the court, after an ex …

Introduction: How Democratic Is The American Constitution?

Cardozo Law Review

No abstract provided.

State Of Israel V. Peretz, Dorit Beinisch, Eliahu Mazza, Mishael Cheshin, Aharon Barak, Jacob Turkel, Eliezer Rivlin, Ayala Procaccia, Edmond E. Levy, Asher Grunis

Translated Opinions

Facts: In two unrelated cases, the prosecution and the defence made a plea bargain in the trial court that was subsequently rejected by the trial court, and the respondents were given stricter sentences than the ones recommended to the court in the plea bargain. The respondents appealed against the strictness of the sentences. In the appeals, which were heard jointly, the state defended the sentences that were handed down by the trial courts, rather than the plea bargains that were originally made by the state. The appeals were allowed, but the court expressed different views on the question whether …

Weight-Loss Advertising Too Good To Be True: Are Manufacturers Or The Media To Blame?, Jodie Sopher

Cardozo Arts & Entertainment Law Journal

No abstract provided.

A "Quizzical" Look Into The Need For Reality Television Show Regulation, Tara Brenner

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Ganis V. Ministry Of Building And Housing, Mishael Cheshin, Aharon Barak, Ayala Procaccia, Dorit Beinisch, Eliahu Mazza, Jacob Turkel, Eliezer Rivlin

Translated Opinions

Facts: Shortly before the election for Prime Minister in 2001, the Knesset passed a law that gave certain persons an entitlement to grants for the purchase or extension of an apartment in Jerusalem. After the election, some six weeks later, the Knesset suspended the grants, and went so far as to include a provision to the effect that the suspension of the grants was retroactive, from the date on which the grants originally came into effect. The petitioners challenged this retroactive suspension of the grants, on the grounds that they had relied on the grants and undertaken to buy or …

Fuchs V. Prime Minister, Aharon Barak, Eliahu Mazza, Dorit Beinisch, Ayala Procaccia, Jacob Turkel, Mishael Cheshin, Edmond E. Levy

Translated Opinions

Facts: The prime minister wished to promote a political plan, known as the ‘disengagement plan.’ In order to ensure that a majority of the Cabinet would support the plan when it was brought to a vote, the prime minister removed two ministers from office two days before the vote was scheduled to be held.

The petitioners attacked the constitutionality of the prime minister’s action on both technical grounds and substantive grounds. They argued, inter alia, that it was improper for the prime minister to remove two ministers from office because they opposed his plan, in order to create an artificial …

Israel Poultry Farmers Association V. Government Of Israel, Dorit Beinisch, Aharon Barak, Mishael Cheshin

Translated Opinions

Petition to the Supreme Court sitting as the High Court of Justice

Facts: The Knesset enacted the Israel Economic Recovery Programme (Legislative Amendments for Achieving Budgetary Goals and the Economic Policy for the 2003 and 2004 Fiscal Years) Law, 5763-2003, which contained, in chapter 11, major changes to the regulation of the agricultural sector in Israel. This law, which contains many diverse provisions, was passed in a rushed process with very little debate either in the House or the committees of the Knesset.

The petitioners claimed, for a wide variety of reasons, that chapter 11, the ‘Agriculture Chapter,’ should be …

Litzman V. Knesset Speaker, Aharon Barak, Asher Grunis, Salim Joubran

Translated Opinions

Facts: Various irregularities occurred during votes in the Knesset, in which certain Knesset members voted instead of other Knesset members. The petitioner asked the court to void the votes in which the irregularities occurred.

Held: Judicial scrutiny of legislative proceedings in the Knesset should be done with great caution, and only when the defect in the proceedings goes to the heart of the matter. In this case, the irregularities did not affect the outcome of the voting, and therefore judicial intervention was unwarranted.

Petition denied.

Foreign Policy And Separation Of Powers Jurisprudence: Executive Orders Regarding Export Administration Act Extension In Times Of Lapse As A Political Question, Themes Karalis

Cardozo Journal of International and Comparative Law

The article examines the interplay between the Export Administration Act (EAA) and the Freedom of Information Act (FOIA), particularly focusing on whether the EAA qualifies as an Exemption 3 statute under FOIA. It explores how courts have upheld the EAA's exemption status even during periods of lapse, emphasizing the executive branch's authority to maintain export controls through executive orders. The analysis highlights the deference given to the executive in foreign policy matters and the challenges posed by the EAA's temporary nature, suggesting that Congress should consider amending the EAA for automatic renewal to avoid recurring issues.

To Defer Or Not To Defer: Judicial Review Of Zoning Board Decisions In New York, Elliot Gardner

Cardozo Public Law, Policy & Ethics Journal

The note examines the judicial review of zoning board decisions in New York, emphasizing the need to balance deference to local boards with ensuring fairness and transparency. It argues that excessive judicial deference can lead to arbitrary and unjust decisions, particularly in distinguishing between variances and special permits. The author advocates for clearer judicial standards, such as a higher scrutiny for special permits, and proposes reforms like specialized courts to enhance consistency and fairness in zoning decisions.

Saif V. Government Press Office, Dalia Dorner, Salim Joubran, Eliezer Rivlin

Translated Opinions

Facts: At the end of 2001, the Government Press Office decided that it would no longer give press badges to Palestinian journalists who were residents of Judaea and Samaria, because of the security risk. The petitioners in the two petitions challenged this policy.

Held: The court held that the refusal to give press badges to Palestinian journalists who were residents of Judaea and Samaria, without any consideration of the individual cases of the persons applying for a press badge, could not be justified on security grounds alone. The respondents had not considered the right of freedom of expression that conflicted …

Hass V. Idf Commander In West Bank, Ayala Procaccia, Aharon Barak, Mishael Cheshin

Translated Opinions

Facts: The Machpela Cave is believed to be the burial site of Abraham and Sarah, Isaac and Rebecca, Jacob and Leah. As such, it is holy to Jews and Moslems. Over the years, the site has seen acts of violence by members of one religion against the other, resulting in casualties.

On Sabbaths and festivals, large numbers of Jews, sometimes in the thousands, go from the nearby town of Kiryat Arba to the Machpela Cave on foot, since the use of vehicles is prohibited by Judaism on these days. They go to the Cave  by means of the ‘worshippers’ route,’ …

Beit Sourik Village Council V. Government Of Israel, Aharon Barak, Eliahu Mazza, Mishael Cheshin

Translated Opinions

This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

According to government decisions as to constructing the borderline barrier, the Second Respondent (hereinafter: the Respondent) issued orders for the seizure of land, some privately owned, in the West Bank in order to build the barrier fence. The Petitioners, landowners and residents of villages in the borderline area, challenge the legality of the orders. They claim the Respondent lacks authority, under international law, to …

Rulemaking, Michael Herz

Articles

No abstract provided.

The Rehnquist Court And Administrative Law, Michael Herz

Articles

No abstract provided.

Legislative Supremacy: Myth Or Reality?, James Oakes

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Developing A Full And Fair Evidentiary Record In A Nonadversary Setting: Two Proposals For Improving Social Security Disability Adjudications, Frank S. Bloch, Jeffrey S. Lubbers, Paul R. Verkuil

Cardozo Law Review

No abstract provided.

The Movement For Quality Government In Israel V. The Prime Minister, Mr. Ariel Sharon, Eliezer Rivlin, Eliahu Mazza, Jacob Turkel, Dalia Dorner, Theodor Or, Dorit Beinisch, Mishael Cheshin

Translated Opinions

Facts: The Prime Minister appointed respondent 3 to the position of Minister of Public Security. Petitioner asks that the High Court of Justice order the Prime Minister to refrain from making the appointment.

Held: The Court, by majority vote, held that it would not intervene in the Prime Minister’s decision to appoint respondent 3 to the position of Minister of Public Security.

Salama V. Idf Commander In Judea And Samaria, Aharon Barak, Jacob Turkel, Eliezer Rivlin

Translated Opinions

Facts: Based on classified evidence tying them to terror organizations, detention orders were issued against the three petitioners. The orders were extended by respondent, and these extensions were confirmed by the Military Appeals Court. Petitioners claim that the extensions are not legal. They argue that respondents should corroborate the suspicions against them with further investigation. This would allow the detention orders to be replaced by a criminal proceeding.

Held: The Court noted that the basic premise of administrative detention is the need to prevent future danger to the security of the state of public safety. Administrative detention is not meant …