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On the Nexus Between the Strength of the Separation of Powers and the Power of the Judiciary
In: 31 William and Mary Bill of Rights Journal 705 (2023)
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Judicial Intervention in Parliamentary Affairs to Prevent a Coup d'état
In: 81 Maryland Law Review 297 (2021)
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Constitutionalism Reborn: Popular Sovereignty and Constitutional Conventions in the U.S. and U.K
In: 60 Columbia Journal of Transnational Law 132 (2021)
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The Strategic Common Law Court of Aharon Barak and its Aftermath: On Judicially-Led Constitutional Revolutions and Democratic Backsliding
In: Law & ethics of human rights, Band 14, Heft 2, S. 227-272
ISSN: 1938-2545
Abstract
There is renewed scholarly interest in studying the dynamics of constitutional revolutions and the explanations for the rise of constitutional courts around the world. At the same time, there is growing discussion of democratic backsliding and concern that democracies are exhibiting extremism, weakening of opposition forces and constitutional courts, and violations of civil and political rights that are pertinent to vibrant democracies. Scholars try to study both phenomena and understand the relationship between them. Israel is an important case study for both agendas. This Article analyzes the jurisprudence of Aharon Barak, one of the greatest jurists of our time with a worldwide reputation for revolutionizing both Israeli constitutional law and comparative constitutional law. It explains the tactics and strategy used by Barak to revolutionize Israeli constitutional law on issues of reasonableness, proportionality, standing, justiciability, constitutional review, equality, and supra-constitutional law. It reveals how each revolution paved the way for the next. It offers explanations for the effectiveness of these judicially-led revolutions as well as possible bases for their legitimation. Barak was a common law judge and ultimately treated parliamentary sovereignty as a doctrine arising from common law and constrained by common law, though he never quite put it in these terms. The Article concludes with explanations for the political backlash experienced by the current Israeli Supreme Court that some have characterized as democratic backsliding. It argues that the Court contributes to the development of law as part of a dialog and interaction between the different branches of government. As the Court operates within these dynamics, it must understand and take into account the institutional, political, and social environments in which it operates to preserve legitimacy and achieve efficacy. Barak was a strategic player that laid foundations for an expansive judicial power, but his Court was very prudent in utilizing that power. His successors may have contributed unintentionally to the backlash against the Court by following Barak's substantive jurisprudence, but not necessarily his prudent tactics and strategy.
הלכת יולי אדלשטיין וכרונולוגיית יחסי הכוחות בין הכנסת לממשלה בישראל The Yuli Edelstein Decision and the History of the Balance of Power between the Knesset and the Government in Israel
In: 44 Tel Aviv University Law Review 321 (2021)
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Global Constitutional Strategies to Counter-Secession
In: STRATEGIES OF SECESSION AND COUNTER-SECESSION 84 (Ryan D Griffiths and Diego Muro eds, ECPR, 2020)
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Acontextual Constitutionalism and the Relationship between the People, Constituent Power and the State: On Nicholas Barber's The Principles of Constitutionalism
In: 24 Jerus. Rev. Leg. Stud. 94 (2021)
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The Strategic Common Law Court of Aharon Barak and its Aftermath: On Judicially-led Constitutional Revolutions and Democratic Backsliding
In: 14 LAW & ETHICS OF HUMAN RIGHTS 227(2020)
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Working paper
Secession and the Prevalence of Both Militant Democracy and Eternity Clauses Worldwide
In: 40 Cardozo Law Review 905 (2018)
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Working paper
Bills of Rights with Strings Attached: Protecting Death Penalty, Slavery, Discriminatory Religious Practices and the Past from Judicial Review
In: Constitutional Dialogue: Rights, Democracy, Institutions (Goeffrey Sigalet, and Grégoire Webber and Rosalind Dixon eds., Cambridge Studies in Constitutional Law, 2019)
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Working paper
On the Nexus of Eternity Clauses, Proportional Representation, and Banned Political Parties
In: 16 Election Law Journal 237 (2017)
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Exploring Constitutional Statutes in Common Law Systems
In: published in QUASI-CONSTITUTIONALITY AND CONSTITUTIONAL STATUTES: FORMS, FUNCTIONS, APPLICATIONS 64, 64-86 (Richard Albert & Joel I. Colón-Ríos eds., Routledge 2019)
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Working paper
Election Integrity: The Constitutionality of Transitioning to Electronic Voting in Comparative Terms
In: Digital Democracy in a Globalized World (Corien Prins, Colette Cuijpers, Peter L. Lindseth, and Monica Rosina Eds., Edward Elgar Publishing, 2017)
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