Dr. Ittai Bar-Siman-Tov- Procedures Matter – Investigating How a Law Passes

Bar-Ilan University Law lecturer Dr. Ittai Bar-Siman-Tov specializes in what at first might seem to be a very obscure part of the legal world: the legislative process and judicial review. That is, the study of whether courts can – and should – get involved in the nitty gritty procedural elements of lawmaking. For example, was the vote for a new bill concluded in the specified amount of time and, if it wasn’t, should a court step in and annul the law? At first blush, one might conclude: what does it matter if the time for voting was 15 minutes as prescribed or extended for 30 minutes?

But it can make a huge difference, explains Bar-Siman-Tov, who received his doctorate on the subject from Columbia University, where he was also a Fulbright Scholar, a Morris Fellow and an Associate-inLaw. Bar-Siman-Tov is one of 16 young academic stars absorbed into BIU’s Liberal Arts disciplines during Academic Year 2011/12, within the framework of the University’s innovative Faculty Recruitment initiative.

He cites an actual example that occurred in the United States. Congressional rules stipulate that voting must be closed in 15 minutes. In one case, however, when it was clear that a majority of the House had voted against the bill, the Chair illegally extended the time frame, during which time supporters of the bill pressured legislators to change their vote. When the supporters finally secured a majority in favor of the bill – after almost three hours – the Chair promptly declared that the bill had passed. “This case illustrates how violations of even technical rules can change outcomes of votes and frustrate the democratic will of the chamber,” explains Bar-Siman-Tov.

An even more egregious case of opportunism happened in Israel where some members of Knesset essentially voted twice by switching seats and pressing the button for absent members. In both cases, Bar-Siman-Tov argues, the courts should have intervened and struck down the laws for violation of procedure. But courts are very reluctant to do so; indeed, no court has yet invalidated a law for violation of parliamentary rules, neither in the U.S. nor in Israel. As a result, the laws in question that Bar-Siman-Tov raises are both still on the books.

Bar-Siman-Tov, 35, is clear to distinguish between judicial review based on procedures, and intervention according to content. In the latter, courts have no hesitation striking down laws deemed unconstitutional. Bar-Siman-Tov is not a judge, nor a member of parliament. His theoretical views were shaped by three years of hands-on experience as a senior law clerk to Justice Dorit Beinisch of the Israeli Supreme Court. However, as an academic, his arguments remain just theoretical, confined to papers published in academic journals. So why bother going off tilting at windmills? “Our role, as legal academics, is first of all to teach,” Bar-Siman-Tov says. Today’s students will be tomorrow’s lawyers, legislators and judges, and they will take what they’ve learned in Bar-Siman-Tov’s classes with them.

Moreover, his scholarly papers – all published in first-rate American journals – have already been cited by some lower courts in the U.S. and – although nothing has changed yet – “it will percolate up, hopefully,” Bar-Siman-Tov believes.

Bar-Siman-Tov teaches constitutional law, constitutional theory, American public law, and legislation courses at Bar-Ilan. He was recently asked by the Israel Democracy Institute, a non-partisan think tank, to contribute to their effort to promote a better legislative process in Israel. But Bar-Siman-Tov is particularly excited about a new legislation course he is now establishing at the University, the first of its kind in Israel.

“While most classes in law school focus on courts and on reading judicial decisions,” he explains, “this course will turn students’ attention to the legislative process itself.” Bar-Siman-Tov credits the University with supporting this important new offering. “One of the things I love about the Faculty of Law at Bar-Ilan,” he says, “is their openness to new ideas, such as allowing me to create this course during my first year on the faculty.” Or to put it another way: that’s a process that should stand up in any court of academic law.
For more on Dr. Bar-Siman-Tov click here.