American moment[s]: When, how, and why did Israeli law faculties come to resemble elite U.S. law Schools?

Theoretical Inquiries in Law

Volumn 10, Issue 2, 2009, Pages

  Lahav, Pnina ^a  

^a NONE

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EID: 68349138123     PISSN: None     EISSN: 15653404     Source Type: Journal    
DOI: 10.2202/1565-3404.1229     Document Type: Article

References (182)

1. Tel Aviv University, The Buchmann Faculty of Law, http://www.law.tau.ac. il (last visited June 10, 2008). The program consists of three semesters, with the third semester (in the summer) taking place at Berkeley with courses "taught in English, by ... [Boalt] professors who specialize in business law."
2. The two outstanding are Arie Freiberg of Monash University in Australia, and Kurt Siehr of the Max Planck Institute in Hamburg. They may symbolically represent the historic influence on Israeli law of the British Commonwealth and Germany, respectively.
3. At the Hebrew University of Jerusalem, the semester of spring 2008 has seven visitors from abroad teaching intensive courses in English: Marshall Brieger, Catholic University, Washington DC; Jeffrey Rachlinksy, Cornell Law School;
4. Phillipe Sands, University College of London; Suzanne Last Stone, Cardozo Law School
5. Mark Tushnet, Harvard Law School; and Tom Ulen, College of Law, University of Illinois. A seventh visitor is Judge Gerald Rosen of the District Court for the Eastern District of Michigan. The pattern observed in the text is repeated: most of the professors come from the United States. In addition to these two law schools, Haifa University and Bar-Ilan University also have law schools. To these one should add six private law schools established primarily in the Tel Aviv area, all founded since the 1990s. All law faculties engage in the practice of inviting foreign professors to give intensive courses in English.
6. Law and economics in particular, a field which presumably is more immune to social sensibilities, has flourished in Israel, perhaps because one of the leaders of the field, Harvard Law professor Lucian Bebchuk, is also an Israeli and a member of the Tel Aviv Faculty of Law. Oren Gazal-Ayal argues that the number of Israelis working in this field is disproportionally high.
7. See Oren Gazal-Ayal, Comments On The Past And Future Of the Economic Analysis Of Law In Israel, 23 Mechkerey Mishpat 661 (2007) (Hebrew); and Oren Gazal-Ayal, Economic Analysis of Law in North America, Europe and Israel, 3 Rev.L. & Econ. 485 (2007). It should be emphasized, however, that Israelis excel in the academic environment of the United States in fields other than law and economics. Notable examples are Meir Dan-Cohen, Yochai Benkler, Andrei Marmor, Ayelet Shachar, and Ran Hirschl.
8. Similarly, whereas through the mid-1970s Israel held few international conferences and could not attract the best and the brightest from the U.S. to attend, today there are scores of such conferences, studded with star law professors in every field. Many, but by no means all, of the visiting professors to the Israeli law schools are Jewish. This is another interesting angle awaiting further research.
9. For an analysis of Israeli academic emigration to the United States (in all fields), see Dan Ben-David, Brain Drained (CEPR Discussion Paper No. 6717, 2008), available at http://papers.ssrn.com/sol3/papers.cfm? abstract-id=1141623.
10. Joshua Weisman, On the Teaching of Law in the United States and in Israe, 12 Mishpatim 425 (1982) (Hebrew) [hereinafter Weisman, On the Teaching of Law]. The article was first published in English as part of a symposium on legal education conducted at the Tel Aviv Faculty of Law. Joshua Weisman, The Relevance of the American Experience to Legal Education in Israel, 5TEL Aviv Stud.L.55 (1980-1982) [hereinafter Weisman, The Relevance of the American Experience].
11. Weisman, On the Teaching ofLaw, supra note 7.
12. In Givat Ram, the law school building was located behind the national library and opposite the buildings of the science faculties, thereby perhaps signaling the aspiration to conceptualize law as a science rather than an art. On Mount Scopus, the law school is adjacent to the social sciences buildings. The home of the Tel Aviv Faculty of Law is located between the social sciences and the humanities buildings.
13. One change may be mentioned immediately - the faculty of law of the Hebrew University, located in the Givat Ram campus, spearheaded the relocation of the campus to Mount Scopus, as Israel reasserted its sovereignty over the mountain and celebrated the reunification of its capital.
14. See Mordechai Kremnizer, From the Peak of Mount Scopus, 2 MlSHPATlM 3 (1970) (Hebrew) ("the faculty of law ascended the mountain. [A] project of renovation and the joy accompanying it"). The growing interest and pride of U.S. Jewry in Israeli affairs after 1967 resulted in handsome contributions, which facilitated academic meetings and encouraged interest in the Israeli legal academic enterprise.
15. In 1975, after a year as dean, Barak was appointed Attorney General in Rabin's (first) government. His decision to indict Rabin's wife for illegally holding a bank account in the U.S. led to Rabin's resignation. However, Barak did share Rabin's admiration for the American political system and culture. In 1978, Barak was appointed to the Supreme Court, and in 2006 retired as its chief justice.
16. See NOMI LEVITZKI, KVODO (2001) (Hebrew). Zamir followed Barak to the deanship, and later served as Attorney General in Menachem Begin's government. He too was appointed to the Supreme Court, and served between 1994 and 2001.
17. In the early 1970s, together with Ruth Gavison, Barak and Zamir taught the legal process course at the Hebrew University. For the impact of legal process thought on Israeli scholarship, see PNINA LAHAV, JUDGMENT IN JERUSALEM:CHIEF JUSTICE SIMON AGRANAT AND THE ZIONIST CENTURY (1995).
18. I could not locate Cavers' syllabus at Harvard Law School. His ideas are captured in his scholarship. See, e.g., Remarks by DavidF. Cavers to Duke Students Concerning the Origin of and Vision for Law and Contemporary Problems, 51 Law & CONTEMP. Probs., atxxiii (1988).
19. Daphne Barak-Erez suggests that there were in fact two American moments. She thinks the major shift in legal education, particularly at the Tel Aviv Faculty of Law, occurred in the 1990s, and should be recognized as an independent "American Moment" rather than as a continuation of the process launched in the early 1970s. I confess to uncertainty as to whether this is a quantitative or qualitative difference, but I am comfortable with two, over one, American moments.
20. I do not carefully trace independent developments in each of these institutions, but point rather to major developments which occurred in one or the other. In the beginning Jerusalem served as a model, which Tel Aviv sought both to emulate and deviate from in order to emphasize its separate identity. This Article is based mainly on printed articles and interviews, and includes some, but far from thorough, study of internal protocols. Again, a more intensive study of the documents awaits another paper.
21. For an interesting analysis of the various schools of legal thought, which includes documentation of the Israeli contribution within each school, see Gad Barzilai, The King Is Not Naked - Why Law Is Political, 4DlN U-Dvarim 1 (2008) (Hebrew).
22. See supra note 3 for a list of law schools.
23. There has been an American presence in Israeli higher education from the very beginnings of the Hebrew University of Jerusalem in the 1920s.
24. See, e.g., Walter Ackerman, The Americanization of Israeli Education, 5lSR.STUD. 228, 235 (2000) (reviewing the influence of John Dewey's work on Israeli educators, and stating that "several generations of curriculum workers and students in Israel have been taught a conception of curriculum - and, by extension, of teaching and other aspects of schooling - which is peculiarly American"). Similarly, the Department of Economics at the Hebrew University had a strong American presence since the late 1940s, due primarily, but not exclusively, to the fact that Don Patinkin, a graduate of the University of Chicago, was its energetic and influential dean.
25. See Nachum Gross, 'Economics' at the Hebrew University Before the 'Patinkin Age' (Maurice Falk Inst. for Econ. Research in Isr., Discussion Paper No. 00.05, 2000) [hereinafter Gross, Economics Before Patinkin]; and Nachum Gross, The Department of Economics at the Hebrew University During the 1950s (Maurice Falk Inst. for Econ. Research in Isr., Discussion Paper No. 04.06, 2006). I thank Ephraim Kleiman for directing me to these materials.
26. See Assaf Likhovski, Argonauts of the Eastern Mediterranean: Legal Transplants and Signaling, 10THEORETlCAL INQUIRES L. 619 (2009). Also, in 1958, an International Lawyers Convention was held in Israel, and Harvard Law professor David Cavers was a guest of honor.
27. Id. at 641.
28. He taught scores of students, including Barak and Zamir. LAHAV, supra note 12. Another example is Justice Shneur Zalman Cheshin, a founding father of Israel's Supreme Court, who received his law degree at N.Y.U. Law School.
29. HCJ 73/53 Kol Ha-Am v. Minister of the Interior (1953) 7 IsrSC 871 (Hebrew), 1 Selected Judgments Sup. Ct. Isr. 90 (1948-1953) (English).
30. See also Pnina Lahav, American Influence on Israel's Jurisprudence of Free Speech, 9 HASTlNGS CONST. L.Q. 21 (1981).
31. Levontin also spent a year teaching at Yale Law School. Theodor Meron, who also had a degree from Cambridge, England, returned in 1957 to serve in the Israeli Ministry of Foreign Affairs, and since 1975 has been a professor of international law at N.Y.U. Law School. More recently, he served as president of the international criminal tribunal for the former Yugoslavia. Yehesqel Dror, whose thesis at Harvard Law School addressed "Law as a Policy Making Instrument, " returned in 1957 to join the faculty of political science at the Hebrew University, and became an internationally known expert in policy studies. In the early 1960s, two Israeli students, Daniel Friedmann and Ami Ben-Porat, took their LL.M. at Harvard Law School. Friedmann returned to Israel and pursued his Ph.D. at the Hebrew University. He became the second dean of the Tel Aviv Faculty of Law, and was Minister of Justice in the Olmert cabinet, leading the campaign to roll back the jurisprudence that Barak developed from the bench.
32. "I was an uncritical fan, " Shapira remembered in an interview. Shapira obtained his S.J.D. from Yale Law School, working with Ronald Dworkin, Guido Calabresi, and Leon Lipson. Earlier, Shapira received an MCL (Master in Comparative Law) from the School of Law at Columbia University, and on his return never tired of informing everyone about the "way we do things at Columbia." Interview with Amos Shapira in Tel Aviv (Apr. 13, 2008). Michael Riesman joined the Yale Law School Faculty. Arie David was a member of the faculty of law at the Hebrew University, but decided to return to the United States. Yuval Levy founded a prosperous law firm in Tel Aviv, but continued teaching.
33. The current building serving as a home to the faculty was the first on the Tel Aviv Campus. Originally it was home to the Higher School for Law and Economics in Tel Aviv, which was closed down to give way to the "branch." See Assaf Likhovski, Legal Education in Mandatory Palestine, 25l YUNEYMlSHPAT 291 (2001) (Hebrew).
34. My introduction opens with a description of Tel Aviv University's Faculty of Law in the text, and a parallel description of the Faculty of Law at the Hebrew University in a footnote. Both law faculties were influenced by the United States. However, it is my impression that Tel Aviv was more receptive to American influence, and that the Hebrew University has experienced more resistance. This matter calls for further investigation. It could be that Barak and Zamir's retirement from the faculty during the 1970s (both served as attorney general, and thereafter as justices of the Supreme Court) left a vacuum, which empowered the resistance to American influence at that institution. Similarly, when Tel Aviv's first dean, Amnon Rubinstein, retired to pursue a political career, inertia may have settled in, which accounts for the view that the significant "American moment" occurred in the 1990s.
35. Olga Frishman, Curricular Trends in Law Schools - The Case of Tel Aviv University (2007) (unpublished seminar paper, Tel Aviv University, on file with author) (Hebrew). This seminar paper is based on Faculty protocols and is recommended for a study of the period. I thank Ron Harris for bringing this paper to my attention, and Ms. Frishman for sharing it with me. For a good discussion of the clinical programs, see Neta Ziv, Combining Professionalism, Nation Building and Public Service: The Professional Project of the Israeli Bar, 1928-2002, 71 FordhamL. Rev. 1621 (2003).
36. Ha-Praklit is now run by the students of the Faculty of Law of the Administrative College in Rishon Le-Zion under the supervision of a faculty member. Prior to 1948, there were several attempts to publish legal journals in Palestine.
37. There was very little interest in Israeli law outside of Israel throughout the 1950s and 1960s, and the likelihood that a U.S. or UK law review would be interested in publishing scholarship about it was quite low. Because Israeli scholars were required to publish in English for purposes of promotion, they felt obliged to publish either comparative pieces (also not too popular at the time), or scholarship related to American law or the common law. It could also be that Israelis were not sufficiently known in the U.S. to impress the editorial boards of U.S. law reviews. Note that the decision was made to publish the Israel Law Review in English, not in French or German. This, despite the fact that it has been said that Israeli law was influenced by European Law, and that many of its founders had European legal training.
38. See Likhovski, supra note 19.
39. In his Foreword to the first issue, Dean Reuven Yaron stated that the main purpose of Mishpatim was "to serve as an important educational tool, first and foremost to the best students who are its editors, and beyond them to the many who will use it as a venue to publish their scholarship." Reuven Yaron, Foreword, 1 Mishpatim 3(1958) (Hebrew).
40. Weisman did concede that the idea of a student-run law review has its advantages. However, his experience has been that each submission to the law review leads to the scholar writing a second "article" in response to the editors' criticisms, elaborating the reasons why their comments and suggestions reflect lack of sufficient understanding of the field. Interview with Joshua Weisman in Jerusalem (Apr. 10, 2008). Criticism of student-editors sitting as judges over scholarship which they do not have the skills to evaluate is widespread in the U.S. as well. In his Foreword to the first volume of Mishpatim, Dean Yaron responded to this reservation: "The frequent change of editors will prevent sinking into the conventional and will promise a fresh approach that does not hesitate to introduce necessary and useful reforms." Yaron, supra note 30, at 3.
41. Interview with Aharon Barak in Herzlia (Mar. 13, 2008).
42. Indeed, the very first issue of Mishpatim contained eight student notes.
43. From a report to the University Comptroller: "The journal Mishpatim is published by a registered company theuniversity established a special fund to support the expenses involved in publication." Report to University Comptroller (Apr. 1, 1982), Hebrew University Faculty of Law Archive, box 35/1, MP/3877.
44. A 1978 report to the dean states that of 26 submissions, 16 were accepted, 7 were rejected, and 3 were pending. Hebrew University Faculty of Law Archive, box 35/1.
45. Letter from Editors Tal Band and Shirley Renner to Chief Justice Agranat (Oct. 28, 1983); Undated handwritten note on the letter from Faculty Advisor Uriel Procaccia to Dean Weisman, Hebrew University Faculty of Law Archive, box 35/1.
46. Report to Dean Weisman (May 17, 1982), Hebrew University Faculty of Law Archive, box 35/1.
47. It may indeed be the case, as some of my interviewees indicated, that the level of the average Tel Aviv law student in the early 1970s (but not today) was lower than that of the average student in Jerusalem.
48. Cohen pursued her Ph.D. at Tel Aviv University, and only then spent a postdoctoral year at the University of Pennsylvania Law School. Interview with Nili Cohen in Tel Aviv (Mar. 3, 2008). The Tel Aviv Faculty went through a series of experiments concerning the composition of the editorial board. It started with a joint faculty/student team, then changed into a system where the teacher was the editor and the students were "vice editors." Today, a member of the faculty is the editor-in-chief, and an editorial board of students work under his or her authority. Nili Cohen, IyuneyMishpat Is Thirty Years Old, 30lYUNEY MlSHPAT 5 (2008) (Hebrew).
49. Interview with Nili Cohen, supra note 39;
50. Cohen, supra note 39. As a result, many of the editors published their seminar papers as student notes. Barak remembered that when he solicited funds for the Law Review (which as an independent company needed its own financial resources) at the Ministry of Justice, he was made to promise that indeed he would see to it that four issues would be published every year. Interview with Aharon Barak, supra note 32.
51. Cohen recalled the need to pursue potential scholars and people's hesitation to publish with the young Iyuney Mishpat when they had an opportunity to publish in Mishpatim or Ha-Praklit. Interview with Nili Cohen, supra note 39.
52. The Hebrew University had already offered a program in legal studies concentrating on Jewish Law and International Law. See Likhovski, supra note 24.
53. See id.
54. URI COHEN, HA-HAR VE-HA-GIVA [THE MOUNTAIN AND THE HILL] (2007) (Hebrew); and NATHAN FEINBERG, REMINISCENCES 144 (1985) (Hebrew). Feinberg was the first dean of the faculty of law at the Hebrew University.
55. Compared to American law students, Israeli students are more mature, due to their military experience, but are less roundly educated, due to the fact that they have not attended college. From this perspective Israel is much closer to Europe and the UKthan to the U.S.
56. Yoram Shachar reports that when the faculty of law at the Hebrew University was established, the small group of founders adopted the Swiss law school curriculum as presented to them by Nathan Feinberg. Yoram Shachar, Mishkan Ke-Mishpato, 19 MECHKEREYMISHPAT 397, 407 (2003) (Hebrew). But note that European ideas about legal education were themselves diverse, and that there was an attempt to develop an alternative and interdisciplinary continental model in Palestine and subsequently in Israel. The Tel Aviv School of Law and Economics was founded by professors who sought an alternative to the traditional model.
57. See Likhovski, supra note 24. This institution did not survive the competitive spirit of the Hebrew University, which sought a monopoly over the field of higher education in Israel of the early 1950s. In addition, the Hebrew University's leadership was uncomfortable with fields of study that had a "professional" orientation. This factor may have influenced the determination of the founders to present law as a "pure discipline" rather than as a system connected to society and politics. For the University's chilly attitude towards professional training,
58. see Gross, Economics Before Patinkin, supra note 18, at 10.
59. Contracts and torts were taught sequentially, in a one-year-long course, as "obligations."
60. For David Sugarman's work, see David Sugarman, "A Hatred of Disorder": Legal Science, Liberalism and Imperialism, in DANGEROUS SUPPLEMENTS: RESISTANCE AND RENEWAL IN JURISPRUDENCE 34 (Peter Fitzpatrick ed., 1991) and references therein. Concerning the promotion of law professors one should recall that they are subject to the same rules that apply across the university. Scholarships provided for bright Israeli students to study in the U.K., particularly in Oxford and Cambrdige, enhanced the attachment to the British tradition. Students who graduated from these universities retained a sense of the superiority of English legal education over the education provided in the U.S. and also tended to deny the absence of "law and " scholarship in the U.K. Interview with Yoram Shachar in Jerusalem (Mar. 9, 2008). As for the system of promotion mentioned in this paragraph: to this day, promotion in Israeli universities is known as a "via dolorosa." One starts with the rank of a "lecturer" (sometimes with a lesser rank), and then has to jump through the hoops of senior lecturer, associate professor, and full professor. Each stage requires full academic evaluation.
61. Interview with Joshua Weisman, supra note 31. This monopoly was known as the "latifundia system" - the system known for concentrating large parcels of land in the hands of the wealthy few.
62. See Asher D. Grunis, Legal Education in Israel: The Experience of Tel-Aviv Law School, 27J.LEGAL EDUC. 203 (1975) (providing a historical overview and a comparison of the curricula at Jerusalem and Tel Aviv).
63. Baruch Avrahami, Give Us a Faculty for Lawyers, 4 MlSHPATlM 225 (1973) (Hebrew).
64. Itzhak Englard, Give Us Students Who Will Study Law, 4 MlSHPATlM 743 (1973) (Hebrew). Englard defended the status quo, and blamed the philistinism of the students for any malaise. His position was that the students, not the faculty, should change. The other response was by Itzhak Zamir, The Other Side ofthe Faculty, 4MISHPATIM 745 (1973) (Hebrew). Zamir sounded more conciliatory, supported change, and even expressed a willingness to turn his course, labor law, into an elective.
65. Id. at 748.
66. Taken together, the attitudes of Englard, Zamir, and Shetreet (see infra p. 676) easily explain why enthusiasm for reform in Jerusalem was rather lukewarm.
67. Amos Shapira, Give Us Appropriate Legal Education, 4 MlSHPATlM 739 (1973) (Hebrew). Another version of this response was Amos Shapira, Legal Education and the Public Interest, 15HA-UNlVERSlTA 26 (1969) (Hebrew).
68. The first dean of the independent Faculty of Law at Tel Aviv was Gualtiero Procaccia, who studied law in Italy, and served as professor of Roman law and corporate law.
69. Interview with Amnon Rubinstein in Herzlia (Apr. 13, 2008). Rubinstein studied both law and economics at the Hebrew University, and expressed admiration for the rigorous and interactive study at the faculty of economics compared with the lethargic instruction at the faculty of law. The faculty of economics, the reader should recall, was formed and led by a graduate of the University of Chicago. See supra note 18. In the archives of the Tel Aviv Faculty of Law, attached to the report on curricular reform, there is a collection of documents from the law schools at the Universities of California (Berkeley), Stanford, Pennsylvania, Virginia, Chicago, George Washington, Illinois, and Wisconsin.
70. Id. Curiously, the curricula of the Harvard and Yale Law Schools do not appear in this collection. This may be an archival omission, or based on the fact that the reformers were already familiar with these curricula. At the Hebrew University in Jerusalem, the reform was less extensive.
71. For a detailed discussion, see Grunis, supra note 48.
72. Rubinstein was also a public intellectual, involved in the affairs of state, and soon established a political party and left the university. His public profile appealed to students who were attracted to the connection between law and politics. It could be that Rubinstein's retirement left the Tel Aviv law school under the influence of the continental European tradition, and retarded the process of Americanization, but not before he had instituted significant reform, as documented by Grunis, supra note 48.
73. Shapira followed Friedmann to the deanship of Tel Aviv University, increasing the ties with the U.S. of which he was very supportive. David Libai, another member of the young generation, turned to criminal defense practice and to politics, and between 1992-1996 served as Israel's Minister of Justice under the (second) Rabin government and the short-lived Peres government.
74. Frishman, supra note 26, at 18-20, 31.
75. See Grunis, supra note 48, at 218. Cf. Celia Fassberg, Daphne Barak-Erez, Comment on Pnina Lahav (June 9, 2008) (unpublished comment, presented at the Cegla Center conference on Histories of Legal Transplantations, on file with author) (discussing the 1990s reforms and stating that Jerusalem led the curricular reform).
76. E-mail from Professor Procaccia (June 18, 2008) (on file with author). In addition to curricular reform, Procaccia also introduced a grading reform, and integrated the idea of commitment to the public interest as a part of legal education. Procaccia also observed a connection between these reforms and the slow shift from formalist scholarship to a recognition that "black-letter law erudition is not at the heart of our project." Id. Procaccia also presented himself as "exhibit A" of the changes that Israeli legal scholars had undergone since the 1970s. As a young lecturer in the early 1970s, he recalled, he was not aware that there were other ways of thinking about the law (despite his graduate work at the law school of the University of Pennsylvania). When he embarked on a joint research project with David Kretzmer (then a young lecturer, the only person on the faculty familiar with theories of law and economics), he heard Kretzmer announce that a particular legal rule was not "efficient." Procaccia remembered being startled by this characterization, as he did not know how efficiency was relevant to the legal analysis at hand. Id. Thereafter, Procaccia studied economics at the Hebrew University, published scholarship within this discipline, and became the founding father of the field of law and economics in Israel. (Kretzmer, an expert on a number of legal fields, went on to establish himself as a renowned authority on international law and human rights.) His influence may explain the fact that today the Faculty of Law at the Hebrew University is particularly strong in law and economics, in addition to analytical jurisprudence. The component of analytical jurisprudence, clearly an English (Oxfordian) legacy, represented by such luminaries as Ruth Gavison, Hanina Ben-Menachem, and Alon Harel (it should be added that preeminent philosopher Joseph Raz is a graduate of the Hebrew University Faculty of Law and taught there briefly as a young lecturer in the late 1960s), may have contributed to the antipathy to "law and " courses at the Hebrew University during the 1970s and 1980s.
77. One interesting difference is the focus on comparative law. Comparative law has always been an important aspect of Israeli legal education and scholarship, long before it attracted attention in the United States. For a thoughtful analysis, see Ron Harris, Rethinking the Rationale for Teaching Comparative Law in Israel, 25 IYUNEY MISHPAT 443 (2001) (Hebrew).
78. The field of civil procedure is an interesting example of the differences that separate the Israeli from the U.S. model. Federalism makes the teaching of civil procedure in the first year an important part of the introduction of students to the distinction between federal and state law. In Israel, this distinction is irrelevant, and civil procedure therefore occupies a less fundamental role in the curriculum. This difference also appears as one of the factors Weisman lists for rejecting the American teaching method. Weisman, On the Teaching of Law, supra note 7.
79. At Tel Aviv University, students have to choose two courses from a cluster of courses called "meta-legal" courses. One of these courses should be taken in the first year. The courses include Law and History, Law and Feminism, Legal Systems (emphasizing comparative law), Theories of State and Morality, Law, Society and Culture, and Law and Economics. At the Hebrew University, three introductory courses are mandatory in the first year: Jurisprudence, Legal Systems, and Introduction to Jewish Law.
80. According to the Israeli Index of Legal Periodicals, thirty-eight scholarly articles have been published in Hebrew on the topic of legal education in Israel. The discussion below mentions only a few of these. I apologize to the authors whose work is not cited herein. This is by no means a reflection on the quality of their work.
81. Latin for "from the chair, " denoting the professor's chair, but also the authority with which the text is delivered. The term is used in Catholic theology to denote the infallibility of the Pope. By implication, its use in the university environment designated the infallibility of the professor.
82. Of course, the lectures did reflect new judicial opinions, but often the professors would delegate the study of new cases to the sections.
83. If the professor felt he could not complete the lectures due to time constraints, he would sometimes ask the teaching assistant ("metargel, " known in U.S. colleges as section leader) to shift to lecture mode. In an interview with Amos Shapira, I learned about the title "me-sha-nen, " which he thought was "tutor." Interview with Amos Shapira, supra note 23. Literally, it means "repeater" or "rehearser." The idea conveyed is that of someone who helps the students memorize facts. Barak did not recall this term, but conceded that this was the nature of the instruction. Interview with Aharon Barak, supra note 32.
84. GAD TEDESCHI, INTRODUCTION TO THE THEORY OF LAW (Aharon Barak ed., 1956) (Hebrew). Other examples are SHALEV GlNOSSAR, Evi DENCE (Eliahu Harnon ed., 1956) (Hebrew);
85. SHALEV GINOSSAR, CIVIL PROCEDURE (Aharon Barak ed., 1957) (Hebrew). Generally, the professors did not oppose publication, but insisted that it include the caveat that the professor did not review these notes.
86. These, at least, are my own recollections as a law student in 1968.
87. Interview with David Kretzmer in Jerusalem (Mar. 27, 2008).
88. Weisman did spend a year at the London School of Economics during his years as a doctoral student, but did not recall encountering a different teaching method there.
89. Weisman recalled that students did complain bitterly about this teaching method, which forced them to read and prepare for class in a manner unprecedented. He acquired the reputation of a "hard teacher." In the days before student teaching evaluations, when popularity was not a factor, this was not considered a serious impediment. I treat this phenomenon as an aspect of transplantation. The topic of transplantation has grown into a serious industry since Alan Watson's seminal work, ALAN WATSON, LEGAL TRANSPLANTS: AN APPROACH TO COMPARATIVE LAW (1974). In this Article I am using this term of art in a minimalist sense and do not address the theoretical complexity it entails.
90. Interview with Amnon Rubinstein, supra note 53.
91. Amos Shapira, Changing Patterns in Legal Education in Israel, 24ADMlN.L.REV. 233 (1972)
92. see also Grunis, supra note 48.
93. Grunis, supra note 48, at 241.
94. Id.
95. one more signal of the changing approach to legal education must be mentioned, and this is the examination. The conventional method of testing, the closed book examination, was challenged by Barak upon his return from Harvard Law School. He recalled telling the students, "you may bring anything, all your books, your notes, you may come with full suitcases of materials if you wish. In the examination you need to apply your knowledge, not regurgitate." This was a radical innovation, which had a thrilling impact on the students, who suddenly experienced agency as an integral part of the educational experience. Interview with Aharon Barak, supra note 32. Similar innovations took place at Tel Aviv. See Grunis, supra note 48.
96. LAURA KALMAN, LEGAL REALISM AT YALE, 1927-1960 (1986);
97. OAURA KALMAN, YALE LAW SCHOOL AND THE SIXTIES (2005).
98. See also Robert W. Gordon, Professors and Policy Makers, in HISTORY OF THE YALE LAW SCHOOL 75 (Anthony T. Kronman ed., 2005); It is also interesting to note that since the 1980s, Barak has developed a deep and meaningful relationship with the Yale Law School, which may have influenced him to balance his devotion to doctrine with an analysis of the purposes (policy) of the law.
99. Avrahami, supra note 49. After criticizing the lecture method, Avrahami called for "a class where the student takes an active part." As "active part, " he listed "the case method, class discussion, and moot courts."
100. Id. at 226.
101. Shimon Shetreet, Letter to the Editor (unpublished, on file with author). Itzhak Englard and Itzhak Zamir also responded. Englard's response was a thorough apology for the existing system, whereas Zamir, while disagreeing with Avrahami, pointed out that the faculty was beginning to introduce the discussion method in the classroom. Englard, supra note 50; Zamir, supra note 50.
102. The original Mao slogan was "let a hundred flowers bloom, let a hundred schools of thought contend." I heard the phrase from both Barak and Amos Shapira in their interviews.
103. Weisman, On the Teaching of Law, supra note 7. Weisman's attack was delivered the previous year (1982) at an international conference on legal education at the Faculty of Law at Tel Aviv University. Weisman, The Relevance of the American Experience, supra note 7. At about the same time, Itzhak Englard, also of the Faculty of Law at the Hebrew University, denounced the Socratic method as a tool used by evil persons (he referred to the fictitious Professor Kingsfield in The Paper Chase). Englard also opined that teaching methods were secondary to students' ability and motivation, and mentioned the frontal lecture respectfully. Englard based his remarks on continental European sources exclusively. Itzhak Englard, Reflections About the Faculty of Law, 12 MlSHPATlM 217 (1982) (Hebrew).
104. The other seven were, in the following order: (1) federalism, which leads to the operation of American law schools as national schools with minimal emphasis on the technical aspects of any one state's legal system; (2) codification, which is a central part of Israel's private law, and which requires close attention to legislation; (3) the fact that Israel requires a period of clerkship where young graduates are trained by attorneys prior to taking the bar exams (it is not clear whether this point works to support or challenge Weisman's major idea, but I shall not get into this here); (4) the fact that Israelis, unlike their peers in the U.S., come to law school without college education, and therefore are not as equipped to discuss policy issues; (5) the lack, in Israel, of published textbooks and casebooks, which facilitate access to knowledge; (6) the fact that in the U.S., lawyers are allowed to advertise their skills means that they lean toward specialization, whereas in Israel self-advertising is prohibited, and therefore the tendency to specialize is weaker; and (7) in the U.S. there is very little emphasis on comparative law, whereas in Israel the tendency to consult "how other countries have approached the problem" is prevalent. The purpose of this Article is not to critically examine Weisman's list of factors, and therefore I do not go beyond offering a description. Some of the factors on his list seem to be no longer relevant.
105. Weisman, On the Teaching ofLaw, supra note 7.
106. In all probability, Weisman was not against exposure to American legal education. Rather, he probably thought that it would be better to educate the next cadre of law teachers in Israel and, only then, when they were rather mature and committed to the "Israeli way of thinking, " to send them for a postdoctoral year in the U.S. like he himself had done.
107. In interview, Weisman stated that this point may be obsolete, because Israel today does have a form of a constitution. Interview with Joshua Weisman, supra note 31.
108. Weisman did understand this issue, and later in his presentation conceded that "considerations of general policy are not absent from the Israeli judicial process." But he did insist that in Israel there is, and should be, less emphasis on policy considerations.
109. Again, this is proof that the scholarship produced at the law school and legal education are intimately connected.
110. Shapira, supra note 72, at 237. Shapira, of course, was not alone. His dean at the time, Amnon Rubinstein, was an avowed supporter of the "law and " movement, and a firm believer in the need for interdisciplinary study.
111. Interview with Amnon Rubinstein, supra note 53.
112. Note too that Shapira is advocating the adoption of the interdisciplinary approach developed at Yale Law School, whereas Weisman may be said to be echoing a permutation of the Langdellian approach prevalent at Harvard in the 1960s. See supra note 76.
113. Shapira, supra note 72, at 237.
114. In fact, their disagreement reflects two stages of globalization.
115. See Duncan Kennedy, Two Globalizations of Law and Legal Thought, 1850-1968, 36 Suffolk U. L. Rev. 631 (2003). Kennedy discusses the struggle between classical legal theory, prevalent in Europe during the 19th century, and "The Social, " which perceives law as social engineering.
116. Id. at 2.
117. Among them Uriel Reichman, Yoram Shachar, and Leon Shellef.
118. By that time, the Hebrew University in Jerusalem had an exchange teaching program with the Law School at U.S.C., and many members of the faculty spent a year of teaching and research at that institution. U.S.C. was an energetic and innovative law school, known for its penchant for legal thought. The Tel Aviv Faculty of Law had an exchange teaching program with Temple Law School, and its faculty members also gained access to the American approach to legal education. Some of them also took advantage of the exchange program at U.S.C. Occasionally, an Israeli law professor would be invited to an elite law school in the U.S. as a visiting professor. Two examples are Ruth Gavison, who taught at Yale Law School in the late 1970s and early 1980s, and Menachem Mautner, who taught at the University of Michigan School of Law in between 1988 and 1991.
119. Uriel Procaccia, Legal Bubbles, 20 Mishpatim 9 (1990) (Hebrew).
120. Id. at 17
121. respectively. (Procaccia relied on the seminal article by Yale Law professor Arthur Allen Leff, Law and, 87 YaleL. J. 989 (1978).)
122. Id. at. 11.
123. Procaccia specifically referred to two senior professors: Avigdor Levontin and S.Z. Feller, the latter known for referring to the "law and " approach as "parasitology, " i.e., legal scholars who drew on other disciplines were parasites, inauthentic.
124. See supra note 58.
125. Ariel Rosen-Zvi, a scholar of family law, was an extremely erudite and broadminded man whose commitment to a more meaningful system of legal education and better scholarship cannot be sufficiently recorded here. His untimely death did not permit him to fulfill his potential as a leader and reformer.
126. Menachem Mautner, The Law School: Between the University, the Bar and the Courts, 1992-1993 Y.B. Isr. L. 1 (Hebrew).
127. Id. at 28.
128. "In the decade prior to writing this article I spent considerable time in the United States as a student and then as a teacher. Every time I returned to Israel, I found myself frustrated because of the fact that things that were treated as givens in leading U.S. law schools were looked upon with suspicion, if not with actual delegitimation in the Israeli law schools." MENACHEM MAUTNER, ON LEGAL EDUCATION 5 (2002) (Hebrew) (this slim volume contains the two Mautner articles on legal education).
129. This is also the place to mention other energetic deans who participated in this process, from Uriel Reichman, who was dean in the 1980s (and went on to establish the formidable university called the Interdisciplinary Center in Herzlia (IDC)), to Ariel Porat, and presently Hanoch Dagan, who is building on these changes and taking the law school in new directions. See particularly the innovative graduate school developed by Dean Dagan. The Buchmann Faculty of Law, The Zvi Meitar Center for Advanced Legal Studies, http://www.law.tau.ac.il/Eng/ ?CategoryID=191 (last visited July 20, 2008).
130. As I noted earlier, some believe that there were two American moments, and that the moment of the 1990s should be seen as new and independent of the 1970s. See supra note 14. In my view, a rejection of the roots of the American moment in the 1970s, and the insistence that the 1990s were "totally new, " is an example of the tension between memory and history. Mautner justly recalls the excitement and energy produced by his 1992 article, but his ability to publish in a new journal, and his invitation to present the work at various legal workshops across Israel, are themselves indications that legal education was following the American model, adopting such features as journals and workshops.
131. MAUTNER, supra note 99, at 91.
132. Ron Shapira, Menachem Mautner's On Legal Education, 27 IYUNEY MlSHPAT 821(2004) (Book Review) (Hebrew).
133. Id.
134. At 825 (note 6 and accompanying text, quoting RICHARD A. POSNER, PROBLEMATICS OF MORAL AND LEGAL THEORY (2002)).
135. Of course there are fundamental differences between Scalia and Posner. Ron Shapira was relying on the similarities.
136. Still, this may not mean that the "culture of learning" in the Israeli law school mirrors the culture of learning in any elite American law school. For a devastating critique of the Israeli environment of legal learning, co-written by an eminent scholar well acquainted with the American, the European, and the Israeli legal cultures
137. see Joseph Weiler & Yaniv Friedman, On The Education for Superficiality, 25 IYUNEY MISHPAT 421 (2001) (Hebrew).
138. See Weiler & Friedman, supra note 105, text accompanying notes 18-19.
139. The two separate dates for taking an exam (moed aleph and moed bet), one soon after the end of the school year, and the other several weeks later, was a device invented to accommodate students who do military reserve duty. All students, regardless of whether they do military duty, benefit from this system. Another significant difference is the fact that in Israel legal education confers an undergraduate degree. The universities, in turn, require that candidates for tenure track positions at the law faculties have a Ph.D. or an S.J.D. Another difference is that clerkships are mandatory and take place at both judicial chambers and law offices. I am grateful to Yoram Shachar and Sandy Kedar for these points.
140. It is also interesting to note that three of these four women taught law and feminism, and made a substantial contribution to the development of feminist consciousness in Israel and to introducing this mode of thought to students.
141. See also Leora Bilsky, Cultural Import: The Case of Feminism in Israel, 25 Iyuney Mishpat 523 (2001) (Hebrew). Many others followed, e.g., Daphne Barak-Erez and Daphna Hacker.
142. Many are under the impression that the rate of Israeli judicial reliance on U.S. law has substantially increased over the last two decades. However, a statistical study conducted by Yoram Shachar and his co-authors, while conceding that the reliance on U.S citations has increased, still claims that the status quo has not been destabilized.. The study does not distinguish between canonical and ordinary cases.
143. See Myron Gross, Ron Harris & Yoram Shachar, Patterns of Citation at the Supreme Court: Quantitative Analysis, 27 Mishpatim 119 (1996) (Hebrew) (an update is forthcoming).
144. For an exposition of Barak's judicial philosophy, see Aharon Barak, AJudge in a Democracy (2006). Israeli law students coming to the U.S. since the late 1980s were puzzled by the strict construction and formalistic opinions emerging from the Rehnquist Court. They had no idea that what they thought of as "the different Israeli approach" was an approach characteristic of the Warren and Brennan Courts in the U.S. of the 1960s and 1970s, an approach which migrated to Israel under Chief Justices Meir Shamgar and Aharon Barak. It should also be mentioned that Barak never gave up his academic affiliations. He has been known for his annual visits to Yale Law School, where he either taught seminars or updated himself on cutting edge scholarship. He is currently a faculty member at the Interdisciplinary Center (IDC) in Herzlia.
145. See, e.g., Pnina Lahav, Israel's Supreme Court, in Contemporary Israel
146. (Robert O. Freedman ed., 2008), and references therein.
147. See Shapira, supra note 102, at 826.
148. For example, Israeli law schools today not only compete for students, but also strive to place their graduates with the most prestigious firms, and then rely on this data to recruit more and abler students. An article in The Marker, the daily HaaretZs financial magazine, titled Partners in the Heights of Manhattan, describes three graduates of the Tel Aviv Faculty of Law who made it to partnership in big New York firms. The article advises those who wish to follow suit to: (1) get an LL.M. from a prestigious American law school; (2) pass the bar examination in the relevant state; (3) get letters of recommendation from attorneys who are employed in the U.S. law firm, or from Israeli attorneys who are valued in the U.S.; (4) get letters of recommendation from American professors; (5) have past employment experience in a big Israeli law firm which has a working relationship with American firms; and (6) have specialization in areas relevant to Israeli companies which are active in the U.S. - intellectual property, mergers and acquisitions, and securities. The article also states that "in almost all the leading New York law firms today you will find at least one Israeli attorney." Partners in the Heights of Manhattan, THE Marker, Apr. 28, 2008, at26.
149. Of the private law schools, one should flag the Interdisciplinary Center, whose name alone discloses the wish to align Israel with the interdisciplinary approach to law, advocated in many American law schools. The IDC's founder, Uriel Reichman, emphasizes the link between business and technology, and encourages a strong nationalist and neo-liberal ideology for Israel. It is not surprising that he is a graduate of the University of Chicago Law School. The IDC, which pays its professors American salaries, is both competitive and successful in the Israeli academic landscape.
150. "Over 135, 000 Law School Admissions Tests were administered in 1973-74, up nearly 10% from the previous year and almost twice as many as during any year of the 1960s." Laura Kalman, Right Star Rising: American Politics and the Limits of Leadership, 1974-79 ch. 1 (unpublished monograph, on file with author).
151. See also Jordan Miller, "Why Is Everyone Taking the LSAT?" A Model of the Demand for Law School 53 fig.1 (May 2004) (Honor Thesis, Stanford Univ. Dept. of Econ.), available at http://www-econ. stanford.edu/academics/Honors-Theses/Theses-2004/Miller.pdf; An Awful Lot of Lawyers Involved, Time, July 9, l973, at 50.
152. The flood of new lawyers led the Bar to forego the traditional oral examination where passage was practically guaranteed, and introduce somewhat more rigorous written examinations.
153. Gad Barzilai, The Ambivalent Language of Lawyers in Israel: Liberal Politics, Economic Liberalism, Silence and Dissent, in Fighting for Political Freedom 247, 247-49 (Terence C. Halliday, Lucien Karpik & Malcolm M. Feeley eds., 2008). Barzilai observes: [T]he number of lawyers during the years 1968 to 2005 has increased by 1552 per cent, while the population growth has increased by 246 percent. Accordingly, demography may explain [only] some of the growth in number of lawyers Most of the dramatic increase wasabsorbed by legal departments in commercial banks, insurance companies, municipalities, and by the state attorneys general and general prosecutor offices yet the private market of lawyers has noticeably been expanded as well. Since the late 1980s, as part of international capital flow into and from Israel, a phenomenon of mega law offices (law offices that have included several dozen lawyers) has been developed. Several law offices have established branches overseas, e.g., in London and New York City. Indeed, the Israeli economy has become more liberal and lawyers have been one major vehicle to incite it and to benefit from it.
154. Id. at 257.
155. For example, the law school at the College of Management was founded by Daniel Friedmann of the Tel Aviv Faculty of Law. The law school in Ramat Gan was established by the faculty of the Hebrew University. The law school in Netanya was established by members of the Bar-Ilan faculty.
156. I thank Gail Hupper for sharing this information with me. The schools included in Hupper s study are Columbia, Harvard, Michigan, N.Y.U., Wisconsin, and Yale. See infra note 131.
157. In comments on my paper, Celia Fassberg pointed to the irony that while the creation of the private law school reflects American influence, the culture in those schools may well reflect the culture prevailing in the law faculties in Jerusalem and Tel Aviv in the 1950s and 1960s. Fassberg, supra note 57. If this is correct, it probably mirrors the difference between elite and low-status law schools in the U.S.
158. Oz ALMOG, FAREWELL TO "SRULIK": CHANGING VALUES AMONG THE ISRAELI ELITE (2004) (Hebrew).
159. See also Andras Jakab, Dilemmas of Legal Education: A Comparative Overview, 57 J. Legal Educ. 253 (2007) (discussing the complex meaning of legal education in a globalized age);
160. and Laurel S. Terry, The Bologna Process and Its Implications for U.S. Legal Education, 57 J. LEGAL EDUC. 237 (2007) (discussing the need of American legal education to address changes brought about by the requirements for more uniformity in education developed by the European Union).
161. For analysis as well as exposure of the dialectics involved in these trends and the political and social powers pulling in the opposite direction, see URY RAM, THE GLOBALIZATION OF ISRAEL: MC WORLD IN TEL AVIV, JLHAD IN JERUSALEM (2007), and references therein.
162. See also GUY MUNDLAK, FADING CORPORATISM: ISRAEL'S LABOR LAW AND INDUSTRIAL RELATIONS IN TRANSITION (2007).
163. Barzilai, supra note 117, at 255.
164. See Kennedy, supra note 89. His stages of the globalization of law correspond to the stages described in this Article.
165. Today, many of the visiting professors coming to Israel to teach crash courses teach in English, but it is hard to imagine a class conducted in French.
166. Thus, for example, Yoram Shachar, a leading Israeli legal historian and a scholar versed in the "law and " movement, pursued his graduate work at Oxford because of such scholarship. Interview with Yoram Shachar, supra note 46.
167. See, e.g., ELIZABETH STEPHENS, U.S. POLICY TOWARDS ISRAEL:THE ROLE OF POLITICAL CULTURE IN DEFINING THE SPECIAL RELATIONSHIP (2006). For an interesting analysis of the formation of law in Mandatory Palestine see ASSAF LIKHOVSKI, LAW AND IDENTITY IN MANDATE PALESTINE (2006).
168. In 1958, U.S. Secretary of State John Foster Dulles declined Israel's government invitation to attend the celebration of its 10th Anniversary. No one fantasized that President Dwight D. Eisenhower might attend. In 2008, President George W. Bush found time in his busy schedule to honor Israel with a special visit as it celebrated its 60th Anniversary.
169. Babylonian Talmud, Pesachim 112a. I thank Hanina Ben Menachem for helping me locate this saying.
170. Gail J. Hupper, The Academic Doctorate in Law: A Vehicle for Legal Transplants?, 58 J. Legal Educ. 413 (2008). Hupper found that close to half of the faculty of law at Tel Aviv hold an American S.J.D. degree, compared with close to 25% at the law school of the National Taiwan University, and 17% at Seoul National University.
171. Id. at 415.
172. For further specific discussion of Israel, see id. at 448.
173. Still, U.S. legal education itself may have to go through changes because of the Bologna Process now being implemented in Europe. See Terry, supra note 122.
174. Simultaneously, the budget of the British Council, which has financed many Israeli graduates over the years, appears to have shrunk.
175. See most recently Kristoffel R. Grechenig & Martin Gelter, The Transatlantic Divergence in Legal Thought: American Law and Economics v. German Doctrinalism (U. of St. Gallen Law & Economics Working Paper No. 25, 2008), available at http://SSRN.Com/abstract=1161168, arguing that German legal thought has been resistant to U.S. law, and to law and economics in particular. Thus there may be a correlation between the Israeli [re]turn to Europe and the German rejection of U.S. legal thought.
176. Interview with Hanoch Dagan in Tel Aviv (Feb. 2, 2008).
177. See Fassberg, supra note 57. Note too that law schools in Asia may have a common language with Israel. Many have intellectual legal roots in Europe, and faculty who hold S.J.D.s from elite law schools.
178. See Hupper, supra note 131, at 415.
179. See also Leigh Jones, Foreign Law Schools Follow the U.S. Playbook, NAT'L L.J. Online (Sept. 2008), http://www.nlj.com.Ithank Professor Frances Miller for directing me to this source.
180. Interview with Hanoch Dagan, supra note 134.
181. Laura I. Appelman, The Rise of the Modern American Law School: How Professionalization, German Scholarship, and Legal Reform Shaped Our System of Legal Education, 39 New Eng.L. Rev. 251 (2004); and Kennedy, supra note89.
182. Gordon, supra note 76. http://www.bepress.com/til/default/vol10/ iss2/art13