Constitutional Law Commons^™

Bethlehem Municipality V. Ministry Of Defense, Dorit Beinisch, Eliezer Rivlin, Esther Hayut

Translated Opinions

Facts: The site known as Rachel’s tomb, which is situated in the outskirts of Bethlehem, is believed to be the tomb of the Biblical Matriarch Rachel and is a holy site to Jews. It is the third holiest site in Jewish tradition, after the Temple Mount and the Machpela Cave.

Because of the persistent terror attacks by Palestinians on Jewish targets since September 2000, and following the discovery of a terror cell that intended to attack a bus of worshippers on their way to the tomb, the respondent made an order to requisition land for the purpose of paving a …

Historicism, Progress, And The Redemptive Constitution, Amy Kapczynski

Cardozo Law Review

No abstract provided.

Worries In A Limitless World, Renata Salecl

Cardozo Law Review

No abstract provided.

The Lengthening Shadow Of Androcentrism, Bryan K. Fair

Cardozo Journal of Equal Rights & Social Justice

The article critiques Harvard President Lawrence H. Summers' hypotheses on the underrepresentation of women in high-end science and engineering jobs, arguing that his views are based on stereotypes and overlook historical and systemic factors. The author contests Summers' points, emphasizing that gender disparities stem from deeply entrenched male privilege and legal structures rather than women's choices or aptitude. The analysis highlights the role of historical discrimination and legal cases in perpetuating gender caste.

Engendering Sex: Birth Certificates, Biology And The Body In Anglo American Law, Saru Matambanadzo

Cardozo Journal of Equal Rights & Social Justice

The article critically examines the legal determination of sex, particularly for transgender individuals, arguing that current systems relying on rigid biological definitions fail to account for the complexity of gender identity. It advocates for a shift towards recognizing "lived gender," which integrates biology, culture, psychology, and social interactions to create a more inclusive and accurate legal framework. This approach challenges traditional legal and medical constructs that have historically marginalized transgender individuals and calls for legal reform to better reflect individual experiences and promote inclusivity.

Out Of The O.R. And Into The Streets: Exploring The Impact Of Intersex Media Activism, Sharon E. Preves

Cardozo Journal of Equal Rights & Social Justice

Babies are born intersexed, with ambiguous genitalia or other reproductive anatomical features, every day. Physical sexual ambiguity occurs frequently, affecting approximately one in 2000 births. Most infants born intersexed are surgically and hormonally altered to reflect the sexual anatomy associated with "standard" female or male sex assignment. This article explores the mobilization and methods of intersex individuals and their allies to destigmatize intersexuality and to alter the medical treatment they receive. I explore the intersex movement's use of mass media as a strategic activist tool and the implications of this mobilization for cultural and medical reform, arguing that media attention …

Military Spying In The United States: When It Is Not Your Neighbor Knocking At Your Door, Where Do You Turn?, Miriam Schneider

Cardozo Journal of Conflict Resolution

This Note will describe the role of the military in the United States and its relationship to privacy rights. Part I of this Note will describe the historical underpinnings that led to a limited role for the military within the United States territory, beyond defending against attack. Part II will describe the expectations by the courts and legislature for the military. In addition, it will illustrate instances where the military, along with numerous federal agencies, overstepped its traditional, constitutional and legal bounds. Part III will offer the legislature's response to, and its subsequent regulation of, the military and other federal …

Permissive Pornography: The Selective Censorship Of The Internet Under Cipa, Heidi Wachs

Cardozo Journal of Equal Rights & Social Justice

The note critiques the Children's Internet Protection Act (CIPA) and its implementation, arguing that while its intent to protect children from online pornography is laudable, the mandated use of Internet filters is flawed. The study demonstrates that current filtering technology often overblocks access to critical nonpornographic health information, particularly affecting vulnerable populations like teenagers seeking sexual health resources. The Supreme Court's ruling in United States v. American Library Association upheld CIPA, dismissing less restrictive alternatives, but the article contends that this approach may harm patrons by restricting access to essential information.

Too Famous For The Right Of Publicity: Etw Corp. And The Trend Towards Diminished Protection For Top Celebrities, Michael Sloan

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Law, Geography And Cyberspace: The Case Of On-Line Territorial Privacy, Daniel Benoliel

Cardozo Arts & Entertainment Law Journal

Territorial privacy, one of the central categories of privacy protection, involves setting limit boundaries on intrusion into an explicit space or locale. Initially, the Restatement (Second) of Torts, which defined the privacy tort of intrusion as applied by courts, most notably designated two classes of excluded areas: "private" places in which the individual can expect to be free from intrusion, and "non-private" places, in which the individual does not have a recognized expectation of privacy. In the physical world, courts ultimately held, almost uniformly, that the tort of intrusion could not occur in a public place or in a place …

Should Ideology Matter In Selecting Federal Judges?: Ground Rules For The Debate, Dawn E. Johnsen

Cardozo Law Review

No abstract provided.

Supermajority Rules And The Judicial Confirmation Process, John O. Mcginnis, Michael B. Rappaport

Cardozo Law Review

No abstract provided.

Judicial Selection: Ideology Versus Character, Lawrence B. Solum

Cardozo Law Review

No abstract provided.

Abandoning Recess Appointments?: A Comment On Hartnett (And Others), Michael Herz

Cardozo Law Review

No abstract provided.

Constitutional Law As Political Spoils, William P. Marshall

Cardozo Law Review

No abstract provided.

Judicial Selection And Democratic Theory: Demand, Supply, And Life Tenure, Judith Resnik

Cardozo Law Review

How ought a democracy select its judges? Critics in Canada, England, and Wales invoke the democratic values of accountability and transparency to call for a diminution in prime ministerial control over judicial appointments. In the United States, Article III of the Constitution's text directs that the President nominate - with the advice and consent of the Senate - life-tenured federal judges. Bitter conflicts about particular nominees have produced many proposals for changes of that system. And in those states that rely on various forms of judicial election, concerns focus on funding and campaigning. In short, both globally and locally, democracies …

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 …

Introduction: Private Parties As Defendants In Civil Rights Litigation, Myriam Gilles

Cardozo Law Review

No abstract provided.

Brown V. Board Of Education After Fifty Years, Jack B. Weinstein

Cardozo Law Review

No abstract provided.

The Federalist Dimension Of Regulatory Takings Jurisprudence, Stewart E. Sterk

Articles

Conventional wisdom teaches that the Supreme Court's takings doctrine is a muddle. Appearances, however, are deceiving. The "property" protected by the Takings Clause is defined not by a single sovereign, but by the legislative enactments and judicial pronouncements of fifty separate states. As a result, federalism concerns - underappreciated in the takings literature - do and should play an important role in shaping the Court's takings doctrine. In particular, these concerns make it inappropriate for the Court to use the Takings Clause as a vehicle for articulating a comprehensive theory of the limits on government power to regulate land. This …

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.

Milo V. Minister Of Defense, Ayala Procaccia, Edmond E. Levy, Eliahu Mazza

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.]

Petitioner 1 applied for an exemption from military service for reasons of conscience due to her objection to IDF policy in the territories, which contravened her humanistic, moral ideology. The military authorities rejected the exemption request, and the Supreme Court denied her petition in the matter. Inter alia, the Court addressed the question of the test employed by the military authorities for deciding the …

Donating "Blood Money": Fundraising For International Terrorism By United States Charities And The Government's Efforts To Constrict The Flow, Montgomery E. Engel

Cardozo Journal of International and Comparative Law

The note examines the U.S. government's use of blocking orders against charitable organizations suspected of supporting terrorism, arguing that while such orders are effective in disrupting terrorist financing, they raise significant concerns about due process, transparency, and the equitable treatment of Muslim-American donors. The author advocates for a shift toward criminal prosecution as a more effective and equitable strategy, balancing national security with civil liberties.

Solodkin V. Beit Shemesh Municipality, Aharon Barak, Eliahu Mazza, Mishael Cheshin, Jacob Turkel, Dorit Beinisch, Ayala Procaccia, Edmond E. Levy, Miriam Naor, Theodor Or

Translated Opinions

Facts: An enabling law of the Knesset empowers local authorities to enact bylaws that prohibit or restrict the sale of pig meat and meat products within the municipal boundaries. The respondent municipalities enacted such bylaws, which restricted or prohibited the sale of pig meat and meat products within their respective boundaries. The petitioners challenged these bylaws, arguing that they violated the freedom of occupation of the sellers of pig meat, and the liberty of the consumers to adopt whatever lifestyle they saw fit, without interference amounting to religious coercion.

Held: The purposes underlying the enabling law empower the local authorities …

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 …

The Murky Depths Of The Entry Fiction Doctrine: The Plight Of Inadmissible Aliens Post-Zadvydas, Allison Wexler

Cardozo Law Review

No abstract provided.

Plainly Not "Error": Adjudicative Retroactivity On Direct Review, Meir Katz

Cardozo Law Review

No abstract provided.

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,’ …