Doctrines without borders: the "new" Israeli exclusionary rule and the dangers of legal transplantation.

• Author: Blum, Binyamin

INTRODUCTION I. EXCLUDING ILLEGALLY OBTAINED EVIDENCE IN ISRAEL: THE ISSACHAROV DECISION A. Issacharov and Meiri: Has Anything Really Changed? B. Distinguishing Admissibility from Weight in Bifurcated and Unitary Courts II. LOST IN TRANSLATION: ADMISSIBILITY IN ISRAELI COURTS THROUGHOUT THE DECADES A. The British Mandate over Palestine: Admissibility as a Legal Standard B. The 1960s: Admissibility as a Separate Procedural Step C. Meiri: Admissibility as Rigidity D. Developments Abroad: The 1980s and 1990s E. The Exclusionary Rule and Rejection of Legal Transplants III. THE ANGLICIZATION OF ISRAELI EVIDENCE LAW A. The Empirical Basis B. The British Mandate and Its Legacy C. Legal Education D. Language and Availability of Sources E. Israeli Procedure and the Common Law F. Why Legal Doctrines Travel: Problem Solving, External Imposition and Emulation G. The Dangers of Treating Foreign Law as Precedent IV. TALKING ABOUT A CONSTITUTIONAL REVOLUTION A. Issacharov and Miranda: Revolution or Evolution? B. How Easy Cases Can Make Bad Law C. Unfinished Business: Issacharov and the Constitutional Revolution D. Comparative Law and Legitimacy CONCLUSION INTRODUCTION

In recent years, the proper role of comparative law in the jurisprudence of American courts has become a hotly debated and controversial topic. The question was brought to the forefront of the legal community's attention following a number of United States Supreme Court decisions, perhaps most notably in Atkins v. Virginia (1) and Roper v. Simmons, (2) rulings that addressed the constitutionality of administering the death penalty to mentally retarded and juvenile defendants. In both decisions, the Court was divided on whether to regard foreign laws and practices as indicative of an evolving standard of decency when determining whether a punishment should be considered "cruel and unusual" under the Eighth Amendment of the United States Constitution.

Those who oppose reference to comparative law have argued that the use of foreign opinions to interpret domestic law unduly imposes foreign "moods, fads, or fashions" upon Americans. (3) Since laws are enacted by democratically elected representatives, the experience and legislation of other jurisdictions is immaterial and should carry little, if any, authority in their interpretation. (4) Critics contend that using foreign law to determine the proper scope of American legislation may award judges a legislative or treaty-ratifying power, an authority clearly reserved by the Constitution for other branches of government. (5) Judges who have used comparative law in formulating their opinions have been accused of "cherry picking" foreign law that supports their opinions; they have been charged with "sophistry" and disguising their personal and political preferences behind a mask of international consensus. (6)

Proponents of comparative law have countered that although foreign law should not bind American courts, surveying international practices and exploring the approaches of other nations may lend American courts useful insight into common problems and affirm their convictions about correct solutions. As Justice Kennedy has said, "The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions." (7) Others have emphasized comparative law's crucial role in prompting us to challenge the necessity and wisdom of doctrines to which we have grown accustomed and that we might view as unchangeable. Foreign law reminds us that other, and perhaps better, solutions might exist elsewhere. (8) True, supporters allow, the citation of foreign law may be prone to abuse, but such risks are neither unique to nor inherent in the use of comparative law. (9)

Despite considerable attention given to the proper role of comparative law in interpreting domestic law, legal scholarship in the United States has concentrated primarily on the use of foreign law by American courts. But especially for those who have emphasized the relevance of foreign experience in addressing common legal dilemmas, examining the approach of foreign courts toward comparative law is an equally informative and relevant inquiry. The use of comparative law by courts is by no means a uniquely American practice; the United States in fact does relatively little of it in comparison to other nations. This Note, therefore, takes a different course: it focuses primarily on the role played by comparative law in the jurisprudence of a foreign jurisdiction--one that frequently relies upon comparative law--and the problems this practice has bred. That is, it offers a comparative angle to the use of comparative law.

More specifically, I offer a case study of a recent decision of the Israeli Supreme Court in Issacharov v. Chief Military Prosecutor, (10) which dealt with the exclusion of illegally obtained evidence. For many reasons the Israeli Supreme Court has often relied heavily on comparative law when formulating its own opinions. However, despite frequent citation of foreign authorities by Israeli courts, this practice has largely escaped controversy. Cases making key use of comparative law therefore abound, as do complications to which this practice may lead. Examining the Israeli use of comparative law also helps underscore some of the differences between the objections raised in the United States and concerns that exist in other countries, highlighting those that are uniquely American and pointing out why the United States may have less to fear from foreign law than some critics suggest.

The Note also addresses a debate closely related to the controversy surrounding the use of comparative law: the possibility and desirability of legal transplants. Opponents of legal transplanting have argued that the deep ties between legal rules and the culture and traditions in which they develop often make it difficult or unwise to transplant the legal rules of one jurisdiction into the judicial system of another. Pierre Legrand, one of the most prominent critics of legal transplants, warns that transplanted doctrines often fail to maintain their original meaning in a new environment and that therefore courts should borrow cautiously and with limited expectations. (11) He and others have criticized the work of "comparativist transplanters," who through the citation of foreign doctrines create a sense of false consensus regarding legal rules. Critics argue that such formal citation of foreign law often overlooks the unique character and operation of a doctrine in its original setting, blurring in the process the distinction between self and other. In contrast, proponents of legal transplants emphasize the important role foreign doctrines have played in legal development since time immemorial. (12) According to Alan Watson and other scholars, it would be impossible to imagine a modern legal system that did not borrow or was not influenced in significant ways by laws originating elsewhere. Legal rules are readily transplanted, they say, and the links between law and culture, history, economics, and language are easily exaggerated.

In the hunt for a test case to add substance to this debate, I offer an indepth analysis of Israel's exclusionary rule to assess the challenges of translating and transplanting doctrines across borders and cultures. My choice to focus on evidence law stems from the particular challenges that its transplantation poses. (13) The strong ties between rules of evidence and the broader institutional context in which they are administered suggest that evidence law can provide unique insight into the dangers of legal borrowing and the use of comparative law. (14) The exclusionary rule, (15) a doctrine intimately linked to judicial structure, offers a particularly illustrative test case. (16) Hence, in Part I, I examine the Issacharov decision, in which the Israeli Supreme Court redefined the exclusionary rule in what the Court proclaimed to be a groundbreaking decision. Was the decision in fact as revolutionary as it suggests? The Court's considerable, and often questionable, reliance upon comparative law may have misled the Court to see an unremarkable case as groundbreaking.

Issacharov is only the most recent attempt by the Israeli Supreme Court to transplant foreign exclusionary rules into Israel. In Part II, I provide a historical look at four stages in the development of the exclusionary rule in Israeli evidence law to further illustrate the inherent difficulties of legal transplanting. That Part explores the Israeli Supreme Court's ongoing struggle to define and translate "admissibility," a term which developed primarily in bifurcated jury systems, into Israel's unitary judiciary. During different eras in Israeli history admissibility has connoted different aspects of the common law term, yet without capturing its full and true essence.

Part III addresses the risks of treating foreign law as precedent and the dangers of legal emulation. I ask why the Israeli Supreme Court has relied so heavily upon the common law in shaping Israel's evidence rules, despite the fundamental differences between Israel and other common law jurisdictions. (17)

Finally, Part IV evaluates the rhetorical role of comparative law as a tool for legitimizing judicial innovation. I discuss how comparative law can be (mis)used to create a sense of international consensus concerning an issue highly debated within a jurisdiction. I consider how comparative law can bolster the power of courts to "revolutionize" and how it served such functions in Issacharov.

1. EXCLUDING ILLEGALLY OBTAINED EVIDENCE IN ISRAEL: THE ISSACHAROV DECISION

   In May 2006, the Israeli Supreme Court handed down its decision in Issacharov, (18) awarding Israeli courts the discretion to exclude illegally obtained evidence. The decision was hailed by many as "a revolution in Israeli evidence law." (19) Rafael Issacharov, a private in...