Constitutional Law Commons^™

Exactions: Exploring Exactly When Nollan And Dolan Should Be Triggered, Jane C. Needleman

Cardozo Law Review

No abstract provided.

Strengthening The Criminal Defendant's Right To Counsel, Anne Bowen Poulin

Cardozo Law Review

No abstract provided.

Ben-Ari V. Director Of Population Administration, Aharon Barak, Dorit Beinisch, Eliezer Rivlin, Ayala Procaccia, Miriam Naor, Esther Hayut, Elyakim Rubinstein

Translated Opinions

Facts: The petitioners are five same-sex couples of Israeli citizens who underwent ceremonies of marriage in Canada in accordance with Canadian law. Upon returning to Israel, they applied to the population registry to be registered as married. Their application was refused. They petitioned the court.

Held: (Majority opinion — President Emeritus Barak, President Beinisch, Vice-President Rivlin, Justices Procaccia, Naor, Hayut) Following the rule in Funk-Schlesinger v. Minister of Interior, that the purpose of the registry is merely statistical, the registration official at the population registry is not competent to examine the validity of a marriage. When he is presented with …

Two Constitutional Wrongs Do Not Make A Right: Double Jeopardy And Prosecutorial Misconduct Under The Brady Doctrine, Adam M. Harris

Cardozo Law Review

No abstract provided.

The Griswold Diagrams: Toward A Unified Theory Of Constitutional Rights, Stephen Kanter

Cardozo Law Review

No abstract provided.

Keynote Address: Secret Evidence In The Age Of National Security, Adam Liptak

Cardozo Public Law, Policy & Ethics Journal

The article explores the tension between national security and the First Amendment, arguing that while the First Amendment remains a robust protection against government censorship, recent trends threaten press freedom, particularly in protecting confidential sources and accessing information. The author, drawing on personal experience as a media lawyer and reporter, emphasizes the importance of procedural safeguards and judicial oversight to prevent government overreach and ensure transparency.

Panel Report: Investigative Journalism And National Security, Zachary D. Streit

Cardozo Public Law, Policy & Ethics Journal

The panel discussion explores the tension between government secrecy and media transparency, focusing on the challenges investigative journalists face in reporting on national security issues. The participants argue that while some secrecy is necessary for national security, excessive classification hampers transparency and accountability. They discuss legal battles, over-classification, and the need for a balance between protecting sensitive information and the public's right to know.

Text, Tradition, And Reason In Comparative Perspective: An Introduction, Adam Seligman, Suzanne Last Stone

Cardozo Law Review

No abstract provided.

Adapting Divine Law To Change: The Experience Of The Roman Catholic Church (With Some Reference To Jewish And Islamic Law), Silvio Ferrari

Cardozo Law Review

No abstract provided.

Deuteronomy And Polity In The Early History Of Jewish Interpretation, Steven D. Fraade

Cardozo Law Review

No abstract provided.

The Beginning Of The End To A Tax-Free Internet: Developing An E-Commerce Clause, Pamela Swidler

Cardozo Law Review

No abstract provided.

The Demise Of Federal Takings Litigation, Stewart E. Sterk

Articles

For more than twenty years the Supreme Court has held that a federal takings claim is not ripe until the claimant seeks compensation in state court. The Court's recent opinion in San Remo Hotel, L.P. v. City & County of San Francisco establishes that the federal full faith and credit statute applies to federal takings claims. The Court itself recognized that its decision limits the availability of a federal forum for takings claims. In fact, however, claim preclusion doctrine-not considered or discussed by the Court-may result in more stringent limits on federal court review of takings claims than the Court's …

Beilin V. Prime Minister, Dorit Beinisch, Edna Arbel, Ayala Procaccia

Translated Opinions

Facts: On 12 July 2006, the Hezbollah organization carried out an offensive operation inside the territory of Israel, as a result of which eight Israel Defence Forces (IDF) soldiers were killed and two other soldiers were kidnapped and taken over the border into Lebanon. In response, the IDF began military operations in Lebanon, and the State of Israel was attacked at the same time with thousands of missiles and Katyusha rockets, which caused death and injuries to dozens of Israeli citizens in the north of Israel, as well as substantial damage to property.

The petitioners argued that the government was …

Reconciling The Booker Conflict: A Substantive Sixth Amendment In A Real Offense Sentencing System, Bertrall L. Ross Ii

Cardozo Public Law, Policy & Ethics Journal

The article examines the tension between the Sixth Amendment right to a jury trial and real offense sentencing, arguing that this conflict is not inevitable and can be reconciled. It advocates for a system where the jury plays a substantive role in checking judicial discretion during sentencing, ensuring constitutional protections while allowing judges to individualize sentences based on real offense factors. The proposed framework moves beyond the separation of functions model, integrating the jury into sentencing decisions to balance retributive punishment with constitutional safeguards.

Civil Commitment Of Sexually Violent Predators: The Search For A Limiting Principle, Aman Ahluwalia

Cardozo Public Law, Policy & Ethics Journal

The article challenges the legal and empirical justifications for civil commitment of sexually violent predators, arguing that current standards, such as mental abnormality and lack of control, are overly broad and lack robust empirical support. It contends that recidivism rates for sex offenders are not significantly higher than those of other offenders, undermining the rationale for civil commitment. The analysis advocates for a more nuanced approach to incapacitation, emphasizing criminal law solutions over medicalized commitments.

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 …

The Religious Origins Of Disestablishment Principles, Marci A. Hamilton, Rachel Steamer

Articles

No abstract provided.

Adalah Legal Center For Arab Minority Rights In Israel V. Minister Of Interior, Aharon Barak, Mishael Cheshin, Dorit Beinisch, Salim Joubran, Esther Hayut, Ayala Procaccia, Asher Grunis, Miriam Naor, Yonatan Adiel, Edmond E. Levy

Translated Opinions

Facts: Since September 2000, Palestinians have mounted a barrage of terror attacks on the State of Israel and its citizens and residents. The intensity of these attacks led the government to adopt various measures to protect the security and safety of Israeli citizens and residents. Because some of the terror attacks were perpetrated with the assistance of persons who were originally Palestinians living in the occupied territories and had received permission to live in Israel within the framework of family reunifications, the government decided in 2002 to stop giving permits to Palestinians from the occupied territories to live in Israel. …

Yissacharov V. Chief Military Prosecutor, Dorit Beinisch, Aharon Barak, Eliezer Rivlin, Ayala Procaccia, Edmond E. Levy, Miriam Naor, Salim Joubran, Mishael Cheshin, Asher Grunis

Translated Opinions

Facts: While being admitted into prison for being absent from the army without leave, the appellant was found to have a dangerous drug in his possession. When he was interrogated about this, the interrogator failed to advise the appellant that he had a right to consult a lawyer. This omission, which was omitted by the prosecution, was held by the trial court to have been illegal and intentional. In the course of the interrogation, the appellant confessed that he had, on three occasions while he was a soldier, made use of dangerous drugs.

The appellant argued that the confession should …

Amir V. The Great Rabbinical Court In Jerusalem, Ayala Procaccia, Mishael Cheshin, Salim Joubran

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.]

This petition puts to the test the question of the Rabbinical Court's authority to adjudicate a property dispute between a couple after the divorce proceeding between them has been completed, and it focuses on an alleged breach of the divorce agreement by one member of the couple. Is the matter within the jurisdiction of the Rabbinical Court or is it within the power of …

Justice & Foreign Affairs: Taking The European Neighbourhood Partner Countries To The European Court Of Justice, Lior Zemer, Sharon Pardo

Cardozo Journal of International and Comparative Law

The article argues that the European Union (EU) should extend the jurisdiction of the European Court of Justice (ECJ) to cover disputes arising from agreements with Neighborhood Partner Countries (NPC) under the European Neighbourhood Policy (ENP). This extension is essential for upholding the EU's constitutional principles, ensuring judicial review, and maintaining the coherence of EU external relations. The authors advocate for the ECJ as the most suitable judicial forum to address these disputes, emphasizing its role in reinforcing the EU's legal identity and capacity building.

United States' Moral Authority Undermined: The Foreign Affairs Costs Of Abusive Detentions, Jeffrey K. Cassin

Cardozo Public Law, Policy & Ethics Journal

The note argues that the United States' engagement in abusive detentions, notably at Guantanamo Bay and in cases like *Hamdi v. Rumsfeld* and Padilla, has severely eroded its moral authority on the global stage. These practices, including indefinite detentions and the denial of due process, contradict U.S. rhetoric on human rights, undermining its credibility and strategic influence. The Supreme Court's rulings in Rasul v. Bush and Hamdi v. Rumsfeld emphasize the necessity of judicial review, yet the U.S. continues to face criticism for hypocrisy, diminishing its ability to promote democracy and human rights internationally.

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 …

Schmitt V. Dicey: Are States Of Emergency Inside Or Outside The Legal Order?, David Dyzenhaus

Cardozo Law Review

No abstract provided.

Supreme Monitoring Committee For Arab Affairs In Israel And Others V. Prime Minister Of Israel, Aharon Barak, Mishael Cheshin, Edmond E. Levy, Dorit Beinisch, Eliezer Rivlin, Ayala Procaccia, Salim Joubran

Translated Opinions

Facts: The government adopted a decision to establish ‘national priority areas’ in outlying parts of the country. These areas were defined in a map that was attached to the government decision. The towns and residents of these areas were given benefits, including in the field of education. The petitioners attacked the legality of the government decision on the ground of discrimination, since hardly any Arab towns were included in the national priority areas. The respondent argued that the criterion for determining the national priority areas was purely geographic, that there was no intention to discriminate against Arab towns and that …

Bishara V. Attorney General, Aharon Barak, Eliezer Rivlin, Esther Hayut

Translated Opinions

Facts: In 2000 and 2001, while the petitioner was a member of the Fifteenth Knesset, he made two speeches. These speeches expressed support and approval for the Hezbollah organization, which in Israel has been declared a terrorist organization, and the petitioner was indicted for offences of supporting a terrorist organization.

In 2002, prior to the elections for the Sixteenth Knesset, applications were made to the Central Elections Committee to disqualify the candidacy of the petitioner in those elections, because of what he said in the two speeches. The Central Elections Committee disqualified the petitioner from standing for election, but this …

Imrei Chayim V. Wisel, Yigal Mersel (Registrar)

Translated Opinions

The District Court annulled an arbitration award.  A party wishes to appeal that decision in this Court.  Section 38 of the Arbitration Law, 5728-1968 (hereinafter: the arbitration law) determines that a decision made pursuant to that law can be appealed by permission.  The party argues before the Registrar of the Court that the appeal should be heard, despite that, as an appeal as of right, since section 17 of Basic Law: Judicature (hereinafter: the basic law) determines that "a judgment of a court of the first instance can be appealed as of right, excepting a judgment of the Supreme Court", …

Conference Report: The New York City Housing Court In The 21st Century: Can It Better Address The Problems Before It?

Cardozo Public Law, Policy & Ethics Journal

On October 28-29, 2004, the Justice Center of the New York County Lawyers' Association (NYCLA), chaired by former Dean of Fordham University School of Law, John Feerick, hosted a conference on the New York City Housing Court, "The New York City Housing Court in the Twenty-First Century: Can It Better Address the Problems Before It?" (the "Conference"). The Conference, occasioned by the court's 30th anniversary, considered how the Housing Court is facing the challenges of the new century, in light of ever-changing social and economic conditions, and whether it is well prepared to meet these challenges in the coming decades. …

History Turned "Sideways": Granholm V. Heald And The Twenty-First Amendment, Harris Danow

Cardozo Arts & Entertainment Law Journal

No abstract provided.