Prospected Projects 

Hardball Constitutionalism and Israeli Accountability Institutions – since 2018 I began studying Fourth Branch Institutions in Israel in an integrative manner. The second article of my doctoral dissertation is a project that aims to place the Attorney General within a network of Fourth Branch accountability institutions (together with institutions such as: the State Comptroller; the Judicial Appointments Committee; Governor of the Central Bank et al.). In my already written work, I ask what changes have taken place in the informal Ethos of these institutions in the last decades, especially with an emphasis on the relationship between expertise/independence vs. responsiveness to the elected echelons. My intention, in this area, is to turn the long chapter into a paper or two; and also to write another paper - completely theoretical - on the tradeoffs between concentration and decentralization in the constitutional design of gatekeeper institutions.

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Actings: politicization through senior civil service temporary appointments - In the United States and Israel, the literature identifies a phenomenon of using Actings (temporary appointments) to increase political control over the civil service and in particular its senior echelons, such as independent and regulatory agencies. In an age of government gridlock, Actings allows for a bypass of the formal institutions entrusted with the appointment procedure, and even the entrenchment of candidates under sub-threshold normative appointment conditions that do not characterize normal appointment procedure – and hence its attractiveness. This phenomenon has developed in the United States over several decades and administrations, but has intensified and become more blatant in the past 8 years. Actings appointment raises dilemmas in the relationship between public service professionalism and politicization. The paper will seek to present the phenomenon in Israel and compare it to that in the United States and other places; to offer some explanations and discuss the relationship between professionalism, civil service renewal and politicization of senior appointment systems in a democracy; while connecting this phenomenon to the broader questions of the role of an independent civil service not only for government performance, but also, as a Separation of Powers mechanism.

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Constitutional Polarization and Judicial Reasoning - The Relationship between Polarization and Constitutional Law are an urgent question of extreme relevance. Effective polarization is a state of radicalization of political attitudes that has characterized democracies in recent decades. Polarization brings with it political fragmentation and populism and has an effect on patterns of the constitutional discourse, political behavior and norms that governs the constitutional order. Theory in this area began to develop the concept of ‘Constitutional Polarization’, which aims to conceptualize how polarization affects the constitutional public discourse, political behavior and constitutional adjudication. The paper will deal with the way in which a polarized policy arena influences the reasoning patterns of a courts operating under polarization conditions. It will present a conceptual analysis of typical stages of judicial reasoning in Public adjudication (definition of the dispute; factual determination; choice of doctrinal paths; Proportionality/balancing; remedies) and show why a court operating under polarization conditions (or one that is polarized in itself) would behave differently from a court not operating under such conditions. I will then try to show the vitality of the theory by using an Israeli case, and compare it to the judicial reasoning patterns in England and the United States.

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All Over Again: Can Social and Economic Rights Boost Israeli Constitutionalism? (With Yuval Shany and Mota Kremnitzer) - This project is less theory and more comparative-normative, and aims to ask whether there is a point in a stronger constitutional entrenchment of social economic rights (SER), given the lessons learned in this field since the important literature written about this cluster of rights in constitutional law, in economics and in public policy in recent decades. Entrenching SER carries with it high institutional coordination costs. Unlike civil-political rights, SER is perceived as a constitutional regime that interferes with the legitimate role of the executive branch to allocate resources, and therefore, creates a unique tension between the executive and the judiciary. Furthermore, empirical studies suggest that it is not at all clear that as a policy regime, constitutional protection of SER is effective in terms of public spending or other metrics of fulfilling socio-economic interests. Despite the skeptical look of SER in the policy literature, the last decade has suggested that there are good reasons to revise these issues. In particular, growing awareness of the democratic costs of the problem of inequality suggests that it may be appropriate to inject SER back to the constitutional field; at minimum, due to expressive benefits and as a trust creating mechanism and at most – due to the role courts can play in boosting policy that implements SER. The paper will attempt to map some topological regimes of SER entrenchment and then discuss the tradeoffs of increasing constitutional protection of these rights.

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Alongside the above papers, I have committed to three more short invited papers in 2022. The first (Exit, Voice, and Loyalty to the Israeli Constitutional Revolution) will deal with the Israeli counter constitutional revolution and is invited for the OXFORD HANDBOOK ON THE ISRAELI CONSTITUTION (February 2022). The second will deal with a short empirical study on the 'Legal opinion library' of former Deputy Attorney General Menachem Mazuz in the decade between 1993-2003 (April 2022, subject to approval). The third will deal with a theory of the executive branch reviewing Margit Cohen's book, and is invited for the JERUSALEM REVIEW OF LEGAL STUDIES (June 2022). I am also committed to continue editing the paper series "On Constitutionalism" that I founded at the Israel Democracy Institute.