Courtesy Brooklyn Law School
Alex SteinCourtesy Brooklyn Law School
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Brooklyn Law Professor Appointed to Israel’s Supreme Court

‘He’s casual, he’s direct, he says what he thinks, and he’s hard to offend’

Armin Rosen
February 27, 2018
Courtesy Brooklyn Law School
Alex SteinCourtesy Brooklyn Law School

A week ago, Alex Stein was a respected legal academic at Brooklyn Law School renowned for his work on evidentiary theory, as well as his notably eclectic intellectual appetite. Today, he’s headed to Israel’s Supreme Court after getting the backing of justice minister Ayelet Shaked, who is also a member of the country’s Judicial Selection Committee. On February 22nd, the Committee announced that Stein had been unanimously selected to the Court, along with the liberal Tel Aviv judge Ofer Groskopf.

Stein, who is 60-years old and currently lives in Connecticut, was born in the former Soviet Union, moved to Israel in his teens, and received his law degree from Hebrew University before earning a PhD in 1990 from the University of London. Although he clerked on Israel’s Supreme Court and practiced law in the country in the 1980s, he’s been a professor in the US since 2004, and taught at Cardozo, Yeshiva University’s law school, until switching to Brooklyn Law in 2016, according to his CV. He’s also never held a judgeship. Not that the transition from academia to a position of high governmental legal power is really all that unprecedented: Harvard law school dean and Supreme Court justice Elena Kagan was confirmed as the US’s Solicitor General despite having never argued a case before any court before, and then did a good enough job to earn the ultimate promotion. Stein is well known in the legal academy—he’s published scores of articles, sits on the editorial boards of two law reviews, and recently founded a widely followed online legal journal dedicated to medical malpractice. Colleagues and experts were unanimous in praising his intellect: “He’s really a legal giant from an academic point of view,” says Cardozo professor Suzanne Stone in a typical affirmation of the scholar-turned-jurist’s brilliance. But Stein has also spent the past decade-and a-half working in New York, some 7,000 miles away from the country where he’s soon to hold something close to ultimate judicial authority.

Stein’s career in the US should give Israelis some idea of why he was selected to their country’s highest court. He has written about a vast range of topics. Torts, evidence, medical malpractice, and behavioral economics have consumed Stein’s ravenous mind; he has an academic-level grounding in the philosophy of epistemology, and was a youth chess champion in the Soviet Union as well as an arbitrator for the Israeli Chess Federation. Supreme court justices have to rule on cases of every description—especially in Israel, where the high court is both an appellate court and a venue of first instance, an arrangement that results in the court issuing some 1,000 decisions a year (The US Supreme Court, which is only an appellate court of final instance, hears about 80 cases a year and decides on an additional 100). “I analogized Alex to a blacksmith at his anvil with sparks flying everywhere,” says Ronald Allen, a Northwestern University law professor who co-authored a 2016 book with Stein. “He’s chock-full of ideas. He has a very creative mind.” Allen says that because of the sheer diversity of topics Stein has tackled, not all of his work turns out to be brilliant: “He’s hit some home runs, he’s struck out too.” The common strand is intellectual adventurousness and a thick skin for debate. “He’s not risk-averse,” says Allen. “He’s willing to go out there, and I admire him for it.”

The transition from the American academy to the Israeli bench isn’t as dramatic as it might appear. Although it’s more or less grounded in English common law, Israel’s legal system is an idiosyncratic mishmash of Jewish, Muslim, British, and Ottoman influences—crucially, the Jewish state lacks a constitution. Perhaps as a result of the country’s relative youth and somewhat fluid legal system, Israel is notably willing to incorporate foreign legal concepts into its jurisprudence. As Michael Herz, a Cardozo professor, scholar of the Israeli Supreme Court, and former colleague of Stein’s explained, Israel’s Court has a clerk responsible for researching how other countries have dealt with legal issues similar to the ones it faces, something that would be unthinkable in the US’s comparatively inward-facing legal system. “To take someone who was trained in Israel but taught in the US and put them on the Supreme Court is completely consistent with the Court’s traditions,” says Herz.

It isn’t out of line for a highly-qualified US-based lawyer to be appointed to Israel’s highest court. But why this specific lawyer? Stein was the personal choice of Ayelet Shaked, a Knesset member from Habayit HaYehudi party and one of the leading figures on the Israeli right. Shaked has long argued that the Court is overly liberal and has openly talked about about the need to change its perceived ideological orientation. It’s tempting to see Stein as an extension of Shaked’s highly ideological outlook, which includes strong views on the court’s status and role within Israeli society. Yet according to his former colleagues, Stein isn’t the least bit political, and it’s hard to discern an ideological bent even in his legal scholarship. If Shaked’s sole objective is to stack the court with allies, Stein is an odd choice for the job.

Stein’s biggest contributions have been related to evidence—as Allen explains, Stein was instrumental in casting doubt on the biases and heuristics-based approach to legal analysis, which argues for taking the alleged irrationality of human nature into account in legal contexts. Stein is also a noted proponent of so-called law and economics analysis, which Minor Meyers, a Brooklyn Law School colleague of Stein’s, describes as “a way of thinking about legal rules that is keyed to the incentives that the rules create and the effect that those incentives will have on the world.” Because it takes the existence and efficiency of market systems as its starting point, law and economics is sometimes pigeon-holed as a right-wing sensibility, although Meyers says there are centrist and even left-wing thinkers who see its value as an analytic framework.

Allen can remember only one instance in which Stein so much as flirted with taking sides on a ideologically charged constitutional issue: A 2000 Harvard Law Review article in which Stein used decision theory to analyze the impact of the fifth amendment’s protections against self-incrimination. Even in that paper Stein didn’t out himself as a partisan—there wasn’t “a whisper of originalism vs. the living constitution, or any of that stuff,” says Allen, who adds that Stein was measured and non-political outside the pages of law reviews, too. “In personal discourse with him I have not ever found him to have a hard-edge ideological view, including not even a Zionist view.”

Julia Simon-Kerr, a University of Connecticut professor and a former law school student and mentee of Stein’s, has a similar sense of his potential judicial philosophy. “I wouldn’t expect him to be dogmatic,” says Simon-Kerr of Stein’s future on the court. “He’s not an ideologue … I would be shocked if he turned out to be some kind of originalist or have some other major interpretive lens that he’s going to apply to every single case.”

The Supreme Court often confronts issues at the core of Israel’s national existence. During Stein’s term, which by Israeli law can only last until he turns 70, he could decide on cases related to citizenship, religious conversion, civil marriage, the status of Israeli law in the West Bank, land tenure, and even the role of the court within Israel’s system of government. Stein’s career gives almost no sense of which direction he’d go on any of these topics. “It’s a mistake to think that one can easily predict his ideological stance, because I think he will be very independent and he’ll follow the law and the facts where they lead,” says Stone, who is also a scholar of the court’s history.

Herz says that he could discern a few consistent beliefs in his former Cardozo colleague’s work—they just don’t reveal how Stein might decide on the biggest questions facing Israel. “I think Alex certainly believes in markets, he certainly believes in incentives,” says Herz. “I think his instincts are anti-regulatory. But where he is on the legal status of the occupied territories, I have no idea.”

For whatever reason, Shaked wanted a highly qualified Supreme Court candidate who is also a relative blank slate on Israel’s most radioactive questions. Stein is a rarity as a bench candidate: Someone who’s a known quantity as a legal mind, but a near-unknown as a potential judge. There’s little in Stein’s US career that would help decode the possible political calculations underlying Shaked’s decision. But it’s clear that the court’s 14 other justices will be able to count on collegiality. Stein is commonly described as witty, respectful, and admirably level-headed—the sort of person you would want in a tight-knit working group. “Alex is good at generating consensus and he’s also good at disagreeing in a professional way,” says Minor, who served with Stein on a Brooklyn Law School committee tasked with evaluating potential new faculty hires. And even if Stein’s been away from Israel for 15 years, New York hasn’t entire tamed him. “He’s Israeli, and that comes with a certain brashness,” says Herz. “He’s casual, he’s direct, he says what he thinks, and he’s hard to offend.”

Armin Rosen is a staff writer for Tablet magazine.

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