Israel’s Supreme Court Appellate Jurisdiction: An Empirical Study

Theodore Eisenberg & Issi Rosen-Zvi & Talia Fisher

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The article reports the results of an empirical study conducted with respect to the appellate jurisdiction of the Israeli Supreme Court (hereinafter “ISC”).1  The ISC sits atop a high-quality common law system and functions as an appellate court for district court rulings.  Cases in which the district court has original jurisdiction—particularly, criminal cases involving serious offenses and high value civil cases—are appealable, as of right, to the ISC (hereinafter “mandatory appeals”). The ISC also serves as a court of cassation for cases initiated in the lower magistrates’ courts, for which the district court is the first instance of appeal. These second review cases may be appealed to the ISC only with permission (hereinafter: “discretionary appeals”).  The fact that, in some cases, the ISC has mandatory jurisdiction, as sole appellate court, while in others it provides a second level of discretionary review, allows for testing of the association between case outcomes and jurisdictional source.

Recent studies highlight the importance of distinguishing between mandatory and discretionary court jurisdiction when analyzing appellate court behavior and when interpreting basic outputs, such as reversal and dissent rates. Our study contributes to this line of analysis.  It also resonates with another line of recent quantitative studies of U.S. federal and state intermediate appellate courts, which point to asymmetric case outcomes and to the fact that defendants fare better on civil appeals than do plaintiffs.

The study includes every ISC substantive opinion available online, via the official Israel Justice Authority (IJA) website, for all mandatory and discretionary criminal appeals decided in the years 2006–2007. It also consists of every ISC substantive opinion available online, via the official IJA website, for all mandatory and discretionary civil appeals decided in 2007 and in the months of August through December of 2006.  Cases that were not decisions granting review, denying review, or on the merits were eliminated from the sample. Comprehensiveness and accuracy of the database were tested by comparing it with data obtained from the ISC secretariat. Covering a total of 3,562 cases, our database thus provides a rare statistical description of a broad class of case outcomes.  The cases are described by subject area, litigant-pair characteristics, and source of jurisdiction.

The central findings of the study point to a substantial affirmed effect in mandatory-jurisdiction cases and to a lower affirmance rate in discretionary cases, with denial of review as the modal outcome.  In mandatory-jurisdiction cases, the ISC affirmed lower court rulings in about 75% of district court criminal case appeals and in 67% of district court civil case appeals.  In discretionary jurisdiction cases, the ISC rarely granted review.  It reviewed about 6% of petitions in criminal cases and about 15% of petitions in civil cases.  In discretionary cases in which the ISC did grant review, it tended to reverse at a much higher rate than in mandatory-jurisdiction cases, with an affirmance rate of 55% of criminal cases and 31% of civil cases.  From a practical perspective, the high reversal rates in discretionary jurisdiction cases are perhaps less important than the low rate at which parties succeed in obtaining ISC review.  In discretionary jurisdiction criminal cases, review was denied in 850 of 897 cases in which review was sought.  If one adds to these 850 cases the 26 affirmances in which the ISC granted review, criminal defendants obtained relief from the ISC in 21 of 897 cases or 2.3% of filings with the requisite information.  The story in civil discretionary cases is similar.  The ISC denied review in 480 out of 572 cases.  That there were 29 affirmances in cases granting review means that the result below was clearly reversed in 63 of 572 cases or only 11% of appellate filings.

Another central finding of our study is that reversal rates in the ISC vary not only by jurisdictional source but also by the identity of the appealing party—whether individual, corporation or government.  Our results showed that the government fared better than non-state litigants, both in obtaining reversals of lower court rulings and in securing review of those rulings.  Pro-corporate effects were not detected.  Starting with the pro-government effect in mandatory civil cases, all litigant pairs, except the two involving the government as a losing defendant who appeals, showed the expected “affirmed effect” on appeal.  The difference between affirmance rates in government-as-defendant-appellant cases and other defendant appeals was highly statistically significant (p=0.001).  This result persisted as statistically significant in logistic regression models with “affirmed” as the dependent variable and explanatory variables. When the government won in the lower court and the non-government party appealed to the ISC, the expected affirmed effect held.  Mandatory-jurisdiction criminal cases followed a similar pattern.  Government secured reversal in 81.1% of the 146 cases it appealed.  Criminal defendants, in contrast, secured reversal in only 15.1% of the 975 cases they appealed.  This result likely is a combination of two forces.  First, the government is more selective than defendants in deciding what cases to appeal.  Given the high personal stakes for defendants, as well as the availability of public defense whose funding is borne by the taxpayers, the tendency to appeal is strong and can dominate even in cases with weak chances of appellate success.  But, even accounting for such case selection, the ISC reversal rate for government appeals seems high.  The government was also more successful than other litigants in securing ISC review of lower court decisions in discretionary jurisdiction cases.  In criminal cases, the government obtained review in 71.4% of the cases sought compared to a 5.6% review rate for defendants.  In civil cases, the government obtained review in 47.4% of the cases sought compared to a 14.2% review rate for other parties.  Both differences are highly statistically significant (p<0.001).  Unlike the government’s success as an appealing party, our findings did not support a similar pro-corporate effect.  In cases not involving the government, the highest rate of review by litigant pair in pairs with more than four cases was 30.8% (4 of 13) in cases involving corporate plaintiff appeals of losses below.

Another principal finding of our study is that sentencing cases dominated the criminal docket and that criminal cases predominated over civil cases.  In 413 of 946 (43.7%), discretionary criminal appeals sentencing was the only basis for appeal.  Also, in 691 of 1,035 (66.8%) mandatory criminal appeals, sentencing was the only basis for appeal.

The article concludes with a discussion of the study’s results. Our findings suggest partial departure by the ISC from the requirements of discretionary appeal, laid down in the landmark case of Chenion Haifa v. Matzat Or2.  According to the rules set in Chenion Haifa, the most cited precedent in Israeli case law, the court should grant discretionary appeal only when there are significant legal or public issues at stake (exceeding the interests of the litigating parties).  The result reached by the lower court—whether correct or erroneous, desirable or undesirable—is immaterial to the decision on the matter of granting a discretionary appeal.  While the low percentage of cases in which the ISC granted review indicates partial compliance with the Chenion Haifa ruling, the exceedingly high reversal rate among the cases in which the ISC granted review indicates deviance regarding the irrelevance of lower court mistakes.  Unless district courts tend to systematically err in important cases in a direction with which the ISC disagrees, there is no ex ante reason to think that important cases will generate reversal rates as high as the ones observed. 

Another point to note, in light of the results of the study, is that our findings generally correspond with the results of prior studies, conducted on other appellate courts, which also demonstrated substantial differences in appellate case outcomes as a function of jurisdictional source.  For example, in a study of approximately 7,000 U.S. state supreme court opinions issued in 2003, Eisenberg and Miller report an aggregate reversal rate of 28.1% in mandatory cases.  In discretionary jurisdiction cases, the aggregate reversal rate was 51.6%.  Reversal rates in federal appellate court cases leading to opinions are reportedly about one-third.  A study covering one-hundred years (1870 to 1970) with a sample of approximately 6,000 opinions from sixteen U.S. state supreme courts reported a mandatory-jurisdiction case reversal rate of 36.8% in published opinions.  That study showed a discretionary case reversal rate of 50%.  Reversal rates in our study did not substantially differ from analogous U.S. state court cases except in discretionary jurisdiction civil cases, in which we found the ISC’s reversal rate to be higher than U.S. state courts.  Comparison of reversal rates across countries can only be suggestive, of course, due to procedural and structural differences.  

Our study also confirms results reported by previous studies of the ISC.  The results reported in the 1996 Shachar-Gross study 3 support our finding as to the pro-government effect.  This study, which included 7,147 ISC cases—representing 40% of all cases published in the years 1948–1994—reported a variance in reversal rates of trial rulings between State and non-State actors.  In criminal appeals, the State secured a reversal of 70.1% of the cases it appealed.  Criminal defendants, in contrast, secured a reversal of only 34.9% of the cases reported.  In civil appeals, reversal rates in appeals by non-State actors—whether plaintiffs or defendants at the trial court level—against the State were 31.2%.  Reversal rates in appeals by the State were 53%.4  Our findings as to the absence of pro-corporate effect align with Dotan’s previous study of the ISC, in its function as High Court of Justice—namely, as a court of first instance for judicial review of cases involving a dispute with an agency of the State.  The Dotan 1999 article reported that, in litigation before the Israeli High Court of Justice, “haves” (corporations) enjoyed only a limited advantage in litigation outcomes over “have nots” (comprised of welfare service customers, immigrants, disabled individuals, and petitioners that are exempt from the duty to pay court fees).  Moreover, the Dotan study also reported that when “have nots” were represented by legal counsel, the corporations did not display any advantage whatsoever.5  Our findings portray a similar picture with respect to the ISC’s appellate function.

Acknowledgments:

Eisenberg is the Henry Allen Mark Professor of Law, Cornell Law School, and Adjunct Professor of Statistical Sciences, Cornell University; Fisher is a senior lecturer at the Buchmann Faculty of Law, Tel Aviv University; Rosen-Zvi is a senior lecturer at the Buchmann Faculty of Law, Tel Aviv University.6

This editorial is based on the article, Theodore Eisenberg, Talia Fisher, & Issi Rosen-Zvi, Israel’s Supreme Court Appellate Jurisdiction: An Empirical Study, 96 CORNELL L. REV. __ (forthcoming 2011).

Copyright © 2011 Cornell Law Review.

  1. The study was restricted to the appellate function of the ISC.  It does not relate to the ISC’s additional function as “High Court of Justice”—as a court of first instance for judicial review of cases involving a dispute with an agency of the State.
  2. C.A. 103/82 Chenion Haifa v. Matzat Or P.D. 36(3) 123 (1982)
  3. Yoram Shachar & Miron Gross, Acceptance and Rejection of Appeals to the Supreme Court: Quantitative Analyses, 13 LEGAL STUD. 329, 335-338 (1996) (in Hebrew).
  4. Id. While the findings of our study seem compatible with the findings of the Shachar-Gross study, one must proceed with caution in comparing the two studies. The studies were conducted using different methodologies and on very different databases.  Our study included all supreme court cases, both published and unpublished, whereas the Shachar-Gross study referred to 40%  of published cases.
  5. Yoav Dotan, Do the ‘Haves’ Still Come Out Ahead? Resource Inequalities in Ideological Courts: The Case of the Israeli High Court of Justice, 33 L. & SOC’Y REV. 1059, 1077 (1999).
  6. We thank Na’ama Schlam for her invaluable research assistance, for her insightful comments and for coordinating the work with the students in a superb manner. We are also grateful to Efrat Zilberbush, Na’ama Daniel, Nitzan Ilani, and Gadi Ezra for their assistance in collecting the data. For excellent comments and suggestions, we thank Daphne Barak-Erez, Ariel Porat and Yoram Shachar. This Article was supported in part by a research grant from Cegla Center for Interdisciplinary Research of the Law at Tel Aviv University.

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