Constitution. He co-founded and was Executive Director of the Israel Law & Liberty Forum.
Green applied the “Page 99 Test” to his latest book, Rogue Justice: The Rise of Judicial Supremacy in Israel, and reported the following:
Page 99 of Rogue Justice closes out my theoretical discussion of the dominant form of statutory interpretation in Israel, called “Objective Purposive Interpretation” (or “OPI”). Under this novel method, judges can apply a statute according to what its purpose ought to be, in their own estimation – really. The page includes a quote from renowned Prof. Stanley Fish critiquing OPI (“you have broken free of any and all constraints on what you then declare the law to be”), and summarizes a central flaw of this interpretive method – that it explicitly enables courts to make binding decisions based on “the entirely personal and prejudiced moral ideology of each and every judge.” I finish the section by writing: “The use of OPI renders legislation meaningless, legislators powerless, and the legislative process futile.” The page then continues on to another section, in which I examine a striking and perplexing similarity between Justice Aharon Barak (pioneer of OPI), and Justice Antonin Scalia (paragon of judicial restraint and textualism).Visit Yonatan Green's website.
I think the Page 99 Test works for my book – partially. Rogue Justice is an analytical, scholarly, rigorous critique of the Israeli legal system, and especially of the doctrines developed by the Israeli Supreme Court over the past four decades. This page sums up the overall critique against one of the core pillars of Israeli judicial supremacy – a wild and unparalleled form of statutory interpretation, which openly flouts legal, democratic and linguistic norms and which grants judges unrivaled governing power. Much of the book involves a serious principled and theoretical examination of the Court’s doctrines, and this page shows the tail-end of such a discussion. The page refers to a well-known expert, reflecting the book’s spirit because so much of the book endeavors to present the critiques of prominent legal scholars, and not solely my own views. One might fairly say that more than anything else, this book compiles a vast array of arguments advanced by leading legal figures against the Israeli Court’s supremacist jurisprudence.
The last sentence quoted above (in the page description), which closes the section, reflects my effort that the book be accessible, readable and enjoyable – I try and condense core arguments into memorable zingers which pack a punch (and are no less true for it). As I continue to the next section, I raise a point of interest to American readers (Scalia vs. Barak), and this too reflects an overall goal of the book, bridging the gap between a far-off jurisdiction and a foreign non-Israeli audience. Further, I think the section (albeit in the next page) makes a non-intuitive and nuanced argument (namely, that Barak and Scalia reach the same conclusion but for completely opposite and contradictory reasons), something which the book does quite often.
The page is missing two significant elements. First, throughout the book I regularly refer to real-life examples and to judicial decisions. This is missing from the current page, making the book seem more theoretical and less practical than it really is. Second, the page has very few endnote references, which is unusual – the book is supported by a vast array of sources and notes, meticulously researched, which typically adorn (and sometimes crowd) every page. Indeed, a key emphasis of my book is how much the granular details matter. In that sense, the very notion of a single page capturing the book’s “essence” is, by definition, contrary to the book’s essential claim. Nonetheless, I think this page provides a useful and not-misleading glimpse into Rogue Justice, its style, and its substance.
--Marshal Zeringue
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