The connection between law and contemporary social science emerged as a consequence of the quest for social reform. As law became more instrumental, it also became more empirical, more concerned with policy. For this process, it turned to social science. Social science complied and has become an adjunct to law in the quest for solving social problems. As this partnership has developed, the relationship between law and social science has matured. Not only has social science sought to educate and influence law, it has also incorporated law into its own disciplinary concerns. Furthermore, the field of socio-legal studies may be on the verge of establishing itself as a separate and distinct discipline, independent of the practical concerns of law.

The scholarly intersection of law and social science — or socio-legal studies, as I shall call it — now speaks with at least three voices addressed to at least three audiences. It speaks as policy analysis, a handmaiden to law. It also speaks in the traditional language of the social sciences. Thirdly, it may be gaining a voice of its own, reflecting a belief that law is a distinct form of ordering that merits its own position among the scholarly disciplines, separate from both scholarly fields and the professional concerns of law. At their core, each of these enterprises entails a distinct voice, a distinct audience, and a distinct agenda.

In this paper I shall be discussing a fundamental problem in the relationship between law and the social sciences. Many social scientists have pointed out that the “pull of the policy audience” in legislative and administrative exercises and the confines of practical decision-making in legal settings can compromise the proper development of academic social science and blunt the edge of political critique. The danger is real enough. But they have given insufficient attention to the opposite concern which will be my topic in this article. Here the charge is that the introduction of social scientific styles of reasoning can have ill effects for legal practice by threatening the integrity of legal processes and the values they embody. How can social scientists be sure that they have properly understood the nature of law or the meaning and point of the legal rules, procedures, and institutions which they attempt to analyze and seek to improve? What warrant can they have that social scientific interpretation, at any level, does not end up creating law in its own image? If this is a genuine risk, what implications follow for the way law should learn from social science? I shall argue that there are no easy answers to these questions even, or especially, where law apparently welcomes contributions from social science.

In the modern age, magic and science are seen to have little in common. Magic is the art of making effects seem real that aren't. Science is concerned with explaining effects that are real through observation and experimentation. Magic is a slight of hand, a manipulation that produces baffling outcomes that we know are illusions, even though we generally have no idea how the magician produces them. Science seeks to understand the underlying principles that govern events using methods that are clearly defined and that encourage replication. There would seem to be little ambiguity as to where magic ends and science begins.

The output of Israel's judiciary, as measured by the number of completed cases, does not vary with judicial inputs, as measured by the number of judges. The appointment of additional judges lowers the caseload of existing judges, who respond by lowering their productivity. The percentage fall in productivity is equal to the percentage increase in the number of judges, implying that the output of the courts remains unchanged. This evidence undermines the conventional approach for determining the number of judges, which assumes that the productivity of judges does not depend upon their caseload.

One of the most influential attempts to describe and comprehend the criminal law system is Packer's celebrated notion regarding the “Two Models of the Criminal Justice System.” Packer regards the criminal justice process as an image constantly shifting between two conflicting models — the “Crime Control Model” and the “Due Process Model” of criminal law. The first model strives to create an effective criminal system that will protect society's right to peace and safety. This aim may be achieved by emphasizing the earlier, informal stages in the law enforcement procedure, namely, police investigation and the decision to prosecute. The second model aims to ensure that the law enforcement process, which is one of the most coercive powers of the state, will be conducted in a lawful manner that will protect suspects and defendants from both intentional wrongdoing and from unintentional mistakes.

Since the late twentieth century, much literature and debate has addressed the use and misuse of science and expertise in the courts and the relationship between science and law in the determination of legal outcomes. Feminists have examined these issues in relation to the adjudication of criminal cases involving women accused (battered woman syndrome – BWS; pre-menstrual syndrome – PMS) and women complainants/victims (rape trauma syndrome – RTS) as well as cases in other areas of law such as sex discrimination and sexual harassment. Their research demonstrates that expert testimony reflects class-based, gendered, racialized, and sexualized assumptions and is clearly important to case outcomes. On one hand, judges often are swayed by expert testimony given at trial and/or submitted at the pre-trial or pre-sentence stage of the criminal process. On the other hand, non-legal experts often act like legal agents on behalf of either the prosecution or the defense. Indeed, the issue of competing experts is central to much discussion and debate about their place in criminal proceedings.

The hearing framework known as a further hearing has been familiar to the general public in Israel for some time. This procedure is granted upon the petition of the parties or by the justices of a specific panel of the Supreme Court. However comprehensible the concept appears to be, in view of its simple designation, this legal device has not merited meaningful attention in legal research. By law, a further hearing is a situation where “in a matter on which the Supreme Court has ruled, with a panel of three or more justices, it may rule at a further hearing as a panel of five or more justices.” In such a case, an expanded Supreme Court bench hears a matter that has already been ruled, but the Court may also convene an expanded panel in other instances. It may also do so in a case that was originally heard by an expanded panel without being designated a further hearing, in which case, it will simply be designated an “expanded panel.” This article will address the concept of the further hearing, as opposed to the phenomenon of “expanded panels” in general. The first part of this article will be theoretical, and we will seek a conceptual understanding of this legal institution. In the second part, the article will address empirical research on this subject and will present quantitative data on further hearings held in the course of over thirty years of Supreme Court adjudication (1970-2000). The third and last part of this article will present possible conclusions that may be drawn from the empirical results and will question the need for such an institution.

Public attention is increasingly being focused on law enforcement practices with regard to senior public figures suspected of committing crimes. Indeed, it is only natural for special sensitivity to be shown in relation to the behavior of public figures in general, and senior public figures in particular. Their authority, social connections, and access to material and other state or public resources, locating them with the “power elite” — or at least the “sub-elites”1 — provide them with unusual power in modern society. It could even be argued that their position contains a “constant structural temptation” for misuse or abuse of this power. Even if public figures are believed to be honest and of impeccable character, it is clear that they have opportunities for abuse of their authority that must be taken into account by law enforcement agencies. Moreover, public trust is an important asset on the part of public figures and civil servants. Accordingly, it might be argued that the criminal justice system should perceive breaches of this trust as more severe than similar offenses committed by private citizens.

My purpose in this paper is to examine the way in which judges have developed the concept of equality in Israel. This examination will concentrate on Supreme Court judgments regarding the right to equality, in the context of group discrimination. There is a dual focus to the research: first, analysis of the decisions in order to clarify the concept of equality which is applied by the judges and, second, examination of the extent to which the judges have been activist in promoting the concept of equality. The latter enquiry is directed both to the intrinsic importance of this question and also to the current flood of attacks on the Supreme Court's judicial policy on the alleged grounds that it is over-activist and, hence, illegitimate. The reason for the choice of the equality issue as the litmus test of judicial activism is the fact that it is the Court's decisions on this issue which have provoked much of the political opposition to the Court. There have also been academic claims that the Court has been too activist, which criticize the Court's human rights jurisprudence, arguing that the Court has over-extended the borders of human rights concerns to include situations that should not properly have been perceived as such.

What is the role of government lawyers? Are they merely agents of their client agencies in court, or do they have a broader function within the world of administrative dispute resolution? On the face of the matter, the lawyer within an adversarial legal system is required to present, to the best of her ability, her client's case in court. The lawyer for the government, however, is not just a professional jurist, but also a public official who is committed to the principles of the rule of law and the constitution. Over the last decade, this tension between the loyalty of the public lawyer to her client and her integrity as a legal bureaucrat who forms an essential element in the process of judicial review has drawn the attention of lawyers and legal scholars.

In this article I describe a model of Public Law litigation in which governmental lawyers play a much more complex role than that of solely being legal agents who seek to maximize their client's rate of success in court. This is the case in Public Law litigation in Israel before the High Court of Justice, where the government's lawyers function not only as representatives of their client agencies but also, in some cases, as arbitrators who handle legal disputes without the intervention of the Court.

Judicial independence is regarded as an essential condition for the rule of law and separation of powers — two pillars of liberal democracy. Judicial independence ought to include components to secure independence on the individual level, as well as components to secure independence on the institutional level of courts. The most important objects of judicial independence are the other branches of government, but some degree of independence from the general public and from other judges is required as well. These features of independence can be achieved by rigid and entrenched arrangements regarding tenure, immunity from wage decrease, special procedures for appointment and promotion of judges, mechanisms for the allocation of cases to judges and the composition of the benches, and more.